5552 Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU84 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Berberis nevinii (Nevin’s 

barberry) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for Berberis 

nevinii (Nevin’s barberry) under the 

Endangered Species Act of 1973, as 

amended (Act). The proposal includes 

approximately 417 acres (ac) (169 

hectares (ha)) of land in Riverside 

County, California, that meet the 

definition of critical habitat for B. 

nevinii. Of this, we propose to exclude 

385 ac (156 ha) of non-Federal land 

from the final designation under section 

4(b)(2) of the Act, leaving a proposed 

final designation of 32 ac (13 ha) of 

Federal land. 

DATES: We will accept comments from 

all interested parties until April 9, 2007. 

We must receive requests for public 

hearings, in writing, at the address 

shown in the ADDRESSES section by 

March 23, 2007. 

ADDRESSES: If you wish to comment on 

the proposed rule, you may submit your 

comments and materials identified by 

RIN 1018–AU84, by any of the following 

methods: 

(1) You may send comments by 

electronic mail (e-mail) to 

fw8cfwocomments@fws.gov. Include 

‘‘RIN 1018–AU84’’ in the subject line. 

(2) You may fax your comments to Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office at 760–431–9624. 

(3) You may mail or hand-deliver 

your written comments and information 

to Jim Bartel, Field Supervisor, Carlsbad 

Fish and Wildlife Office, 6010 Hidden 

Valley Road, Carlsbad, CA 92011. 

(4) You may submit your comments at 

the Federal eRulemaking Portal, http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office at the above address (telephone 

760–431–9440). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office at the address or 

telephone number listed under 

ADDRESSES. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339, 7 

days a week, 24 hours a day. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether the benefit of designation will 

outweigh any threats to the species due 

to designation; 

(2) Specific information on the 

amount and distribution of Berberis 

nevinii habitat; what habitat or habitat 

features are essential to the conservation 

of this species and why; and which 

areas occupied at the time of listing 

containing these features should be 

included in the critical habitat 

designation, and which areas not 

occupied at the time of listing but 

currently occupied should be included 

in the final designation, and why; 

(3) The geographical extent, number 

of plants, and/or reproductive status of 

native Berberis nevinii occurrences, 

particularly those in the Loma Linda 

Hills area (vicinity of San Timoteo 

Canyon and Scott Canyon) in San 

Bernardino County and those in western 

Riverside County (including in the 

vicinity of Vail Lake, the Agua Tibia 

Mountain foothills (Cleveland National 

Forest), in the Soboba Badlands east of 

the San Jacinto Wildlife Area, the 

Jurupa Hills area, and near Temecula); 

(4) Specific information on three 

historical Berberis nevinii records from 

Los Angeles County, two from the 

Arroyo Seco near Pasadena (CNDDB 

element occurrence 8 and 9) and one 

from the Big Tejunga Wash near San 

Fernando (CNDDB element occurrence 

10), such as whether the species still 

exists in this area and where; 

(5) Whether any areas not currently 

known to be occupied by Berberis 

nevinii, but essential to the conservation 

of the species, should be included in the 

designation; 

(6) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(7) Information that demonstrates a 

species-specific pollinator-plant 

relationship for Berberis nevinii; 

information on seed dispersal 

mechanisms and dispersal distance for 

Berberis nevinii; whether seed banks 

exist for this species and, if so, for how 

long and under what conditions; and 

whether such information should be 

applied to or considered a primary 

constituent element for the species; 

(8) Our proposed exclusion of 

Berberis nevinii habitat covered under 

the approved Western Riverside County 

Multiple Species Habitat Conservation 

Plan (MSHCP) and whether the benefits 

of excluding these areas outweigh the 

benefits of their inclusion under section 

4(b)(2) of the Act (see Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act for 

details on the Western Riverside County 

MSHCP). If the Secretary determines the 

benefits of including these lands 

outweigh the benefits of excluding 

them, they will not be excluded from 

final critical habitat; 

(9) Additional information regarding 

management plans covering lands 

managed by the Bureau of Land 

Management (BLM) on Oak Mountain 

and by the United States Forest Service 

(USFS) on Cleveland National Forest, 

and whether these plans provide 

specific management for Berberis 

nevinii such that consideration of 

exclusion of these lands under section 

4(b)(2) of the Act would be appropriate; 

(10) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; and 

(11) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please include ‘‘Attn: RIN 

1018–AU84’’ in your e-mail subject line 

and your name and return address in 

the body of your message. If you do not 

receive a confirmation from the system 

that we have received your Internet 

message, contact us directly by calling 

our Carlsbad Fish and Wildlife Office at 

phone number 760–431–9440. Please 

note that comments must be received by 

the date specified in the DATES section 

in order to be considered. 


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Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their names and home 

addresses, etc., but if you wish us to 

consider withholding this information, 

you must state this prominently at the 

beginning of your comments. In 

addition, you must present rationale for 

withholding this information. This 

rationale must demonstrate that 

disclosure would constitute a clearly 

unwarranted invasion of privacy. 

Unsupported assertions will not meet 

this burden. In the absence of 

exceptional, documentable 

circumstances, this information will be 

released. We will always make 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives of or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) Designation provides additional 

protection to habitat only where there is 

a federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction, or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, 483 species, or 37 percent 

of the 1,311 listed species in the United 

States under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,311 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that 

these measures may make the difference 

between extinction and survival for 

many species. 

In considering exclusions of areas 

proposed for designation, we evaluate 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F.3d 1059 (9th 

Cir 2004) (hereinafter Gifford Pinchot). 

In that case, the Ninth Circuit court 

invalidated the Service’s regulation 

defining ‘‘destruction or adverse 

modification of critical habitat.’’ In 

response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas. The Service will 

carefully manage future consultations 

that analyze impacts to designated 

critical habitat, particularly those that 

appear to be resulting in an adverse 

modification determination. Such 

consultations will be reviewed by the 

Regional Office prior to finalizing to 

ensure that an adequate analysis has 

been conducted that is informed by the 

Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designating critical habitat is 

expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a timeframe that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

to sue relative to critical habitat, and to 

comply with the growing number of 

adverse court orders. As a result, listing 

petition responses, the Service’s own 

proposals to list critically imperiled 

species, and final listing determinations 

on existing proposals are all 

significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

the biology and ecology of Berberis 

nevinii, refer to the final listing rule 

published in the Federal Register on 

October 13, 1998 (63 FR 54956). 

Species Description 

Berberis nevinii is a 3 to 13 foot (ft) 

(1 to 4 meter (m)) tall rhizomatous, 


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evergreen shrub in the barberry family 

(Berberidaceae) that is endemic to 

southern California. This species 

naturally occurs in scattered locations, 

ranging from the foothills of the San 

Gabriel Mountains in northern Los 

Angeles County, south and east to the 

Loma Linda Hills in southern San 

Bernardino County, and south to near 

the foothills of the Peninsular Ranges of 

southwestern Riverside County (63 FR 

54958; California Natural Diversity 

Database (CNDDB) 2006). Berberis 

nevinii generally occurs between 900 

and 2,000 ft (300 and 650 m) in 

elevation (63 FR 54958), with scattered 

occurrences found outside this elevation 

range (California Native Plant Society 

(CNPS) 2001, p. 96; CNDDB 2006). This 

species generally grows on sandy soils 

in low-gradient washes, alluvial 

terraces, and canyon bottoms, along 

gravelly wash margins, or on coarse 

soils on steep, generally north-facing 

slopes in association with the following 

plant communities: alluvial scrub, 

cismontane (e.g., chamise) chaparral, 

coastal sage scrub, oak woodland, and/ 

or riparian scrub or woodland (Boyd 

1987, pp. 2, 7; Boyd 1989, pp. 6–8; 63 

FR 54958; CNPS, 2001, p. 96; CNDDB 

2006). While it is typically found 

growing on soils of sedimentary origin 

(Boyd 1987, p. 3), B. nevinii is also 

found on clay soils originating from 

gabbro bedrock and in association with 

metasedimentary substrates and springs 

or seeps (Soza 2003). 

Species Distribution 

Berberis nevinii appears never to have 

been common, even within its limited 

range (Neihaus 1977, p. 2; Mistretta and 

Brown 1989, p. 7). Its historic 

distribution probably consisted of fewer 

than 30 scattered occurrences in Los 

Angeles, San Bernardino, and Riverside 

Counties (63 FR 54958), and possibly 

San Diego County (Neihaus 1977, p. 1; 

Reiser 2001, unpaginated; CNDDB 

2006). This species was first discovered 

in 1882 in the San Fernando Valley near 

Los Angeles (Gray 1895, p. 69; Wolf 

1940, unpaginated). This was likely one 

of the most extensive occurrences of the 

species consisting of approximately 100 

plants scattered over 1 to 2 miles (1.6 to 

3.2 kilometers (km)) of gravel washes 

southeast of the City of San Fernando 

(Wolf 1940, unpaginated). However, the 

species is presumed extirpated from this 

location (Boyd 1987, p. 3). 

Berberis nevinii was introduced into 

horticulture around 1920 (Wolf 1940, 

unpaginated) and was subsequently 

planted at numerous sites throughout 

the species’ range (Boyd 1987, p. 2; 

Boyd and Banks 1995, unpaginated; 

Reiser 2001, unpaginated). The 

availability of B. nevinii in the nursery 

trade and the introduction of cultivated 

specimens into native habitats have 

contributed to confusion regarding the 

species’’ native range. Table 1 

summarizes our current understanding 

of B. nevinii’s occurrence, origin, and 

status, by county, for records in the 

CNDDB (2006). Additional occurrence 

records not in the CNDDB, and therefore 

not included in Table 1, are discussed 

below. 

TABLE 1.—KNOWN OCCURRENCES OF Berberis Nevinii IN THE CALIFORNIA NATURAL DIVERSITY DATABASE (2006) AND

STATUS BY COUNTY 1

County Extant,2

native 

Extant, cultivated 

origin 

Extant, unknown 

origin 

Extirpated 3 Unknown 

Status 4 Other 5

Los Angeles ..................................................................... 1 4 1 4 3 1 

San Bernardino ................................................................ 2 0 0 2 0 0 

Riverside .......................................................................... 16 1 1 0 0 1 

San Diego ........................................................................ 0 1 0 0 0 1 

Total .......................................................................... 19 6 2 6 3 3 

1Other records that are not in the California Natural Diversity Database (CNDDB) are discussed below. 

2Extant = still existing. 

3Extirpated = no longer existing. 

4Possibly extirpated or unknown status. 

5 Location questionable and/or may be the same as another CNDDB record. 

As stated in the final listing rule (63 

FR 54956, October 13, 1998), the 

majority of native Berberis nevinii 

occurrences were located in two 

geographic areas: In the vicinity of Vail 

Lake and Oak Mountain in western 

Riverside County (16 occurrences 

collectively consisting of 200 to 250 

individuals) and in San Francisquito 

Canyon on the Angeles National Forest 

in Los Angeles County (130 to 250 

individuals) (63 FR 54957 and 54958). 

The majority of B. nevinii plants in the 

Vail Lake/Oak Mountain area were 

located on private lands, with a few 

plants on BLM lands north of Vail Lake 

and on the Cleveland National Forest 

southeast of Vail Lake (63 FR 54958). At 

the time of listing, two other native 

occurrences were known from private 

lands in the Loma Linda Hills area in 

southern San Bernardino County, one 

consisting of single large individual and 

the other consisting of seven individuals 

(Boyd 1987, pp. 5, 7; CNDDB 1997); in 

addition, a single naturally-occurring 

plant was known from Lopez Canyon in 

the foothills of the San Gabriel 

Mountains on the Angeles National 

Forest in Los Angeles County (63 FR 

54958). Other B. nevinii occurrences 

were known or suspected to be of 

cultivated origin, and were located 

primarily on private lands. 

We are aware of several occurrences 

of Berberis nevinii that have been 

identified since the final listing rule (63 

FR 54956, October 13, 1998). One 

occurrence is at the mouth of Cobal 

Canyon at the south base of the San 

Gabriel Mountains in Los Angeles 

County; it consists of three plants 

adjacent to a fire road in the Claremont 

Hills Wilderness Park (CNDDB 2006). 

The location of these individuals and 

the presence of other introduced plant 

species nearby has led to speculation 

that B. nevinii was planted here (Soza 

and Boyd 2000, p. 4). We are also aware 

of several occurrences in western 

Riverside County from the vicinity of 

Vail Lake/Oak Mountain, the Soboba 

Badlands, Jurupa Hills, and the 

Temecula area that have been identified 

since the species was federally listed. Of 

these, two occurrences in the Jurupa 

Hills and two occurrences in the 

Temecula area have presumably been 

extirpated due to residential or 

agricultural development. The Soboba 

Badlands occurrence, east of the San 

Jacinto Wildlife Area, is presumed 

extant, as are those in the vicinity of 

Vail Lake and Oak Mountain (Service 

2004, p. 331). 


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In total, we are aware of 32 records of 

Berberis nevinii in the vicinity of Vail 

Lake and Oak Mountain that were 

documented by multiple observers 

between 1987 and 1990 (Service 2004, 

p. 331). These records were compiled in 

association with the Western Riverside 

County Multiple Species Habitat 

Conservation Plan (MSHCP) (MSHCP 

records). According to location 

descriptions, some MSHCP records 

appear to be duplicates of CNDDB 

records, although they are not always 

mapped the same (Service GIS data 

2006). Many of the MSHCP records 

overlap spatially and others are 

recorded in close proximity to each 

other, making it difficult to determine if 

each record is a distinct occurrence of 

the species or separate observations of a 

single occurrence (Service 2004, pp. 

330–331). Accompanying data, such as 

number of plants, origin (native versus 

cultivated), and habitat information, is 

generally lacking, making it difficult to 

accurately quantify the number of 

distinct occurrences or plants in the 

Vail Lake area. We are seeking 

additional information to clarify and 

verify these occurrences, as well as 

those mentioned in the preceding 

paragraph (see Public Comments 

Solicited section). 

At least six extant occurrences in Los 

Angeles, Riverside, and San Diego 

Counties are of cultivated origin or are 

thought to be outplanted individuals 

originating from another part of the 

species’ range (CNDDB 2006; Table 1). 

The largest of these is in San 

Francisquito Canyon on the Angeles 

National Forest. This location is in the 

Liebre Mountains, a northwestern 

extension of the San Gabriel Mountains, 

which extends the species’ overall range 

to the north and west in Los Angeles 

County. At the time of the final listing 

rule (63 FR 54956, October 13, 1998), 

we believed Berberis nevinii to be 

naturally occurring in San Francisquito 

Canyon. We are now aware that this 

species was planted in the bottom of the 

canyon in 1929 following a flood. 

Moreover, one of the individuals used 

in the planting originated as a seedling 

in the San Fernando Valley in Los 

Angeles County (Payne 1945) where the 

species is thought to no longer occur 

(Niehaus 1977, p. 1; Boyd 1987, p. 3; 

CNDDB 2006). Berberis nevinii appears 

to have naturalized (established as a 

part of the flora of a locale other than 

their place of origin; i.e., nonnative) 

within San Francisquito Canyon, 

spreading beyond the canyon floor 

where it was planted (Payne 1945) to 

the canyon slopes (Soza and Boyd 2000, 

p. 2; Soza and Fraga 2003, p. 1). We are 

unaware of any evidence indicating that 

this species naturally occurred in San 

Francisquito Canyon prior to it being 

planted there in 1929. However, Boyd 

(Soza and Boyd 2000, p. 3) noted that 

oaks in the canyon appear to pre-date 

the flood, which indicates that not all 

vegetation was scoured from the site by 

floodwaters and if B. nevinii naturally 

occurred in the canyon prior to this 

event, some individuals may have 

survived. The San Francisquito Canyon 

occurrence has been estimated at 130 to 

200 plants in the past (Soza and Boyd 

2000, p. 2; CNDDB 2006), but recent 

surveys estimate the population at 91 

plants after a fire burned through the 

entire occurrence in 2002 (Soza and 

Fraga 2003, p. 2). 

No native occurrences of Berberis 

nevinii have been located in San Diego 

County (Reiser 2001, unpaginated). A 

report of this species in the desert 

foothills of Anza-Borrego near Ranchita 

(San Felipe Wash) in Eastern San Diego 

County remains unconfirmed (Niehaus 

1977, p. 1; Reiser 2001, unpaginated; 

CNDDB 2006). Isolated plants or small 

stands (groupings of individuals) of B. 

nevinii may occur in the little explored 

foothills at the northern edge of the 

Agua Tibia Wilderness Area, potentially 

into San Diego County (Reiser 2001, 

unpaginated), as it occurs nearby in 

southern Riverside County (Boyd and 

Banks 1995, unpaginated; CNDDB 

2006). At least two occurrences of B. 

nevinii in San Diego County are likely 

of cultivated origin: Torrey Pines State 

Park (Reiser 2001, unpaginated) and 

near the base of Mount Palomar on the 

La Jolla Indian Reservation (Boyd 1987, 

p. 3; Reiser 2001, unpaginated; CNDDB 

2006). 

At least seven occurrences of Berberis 

nevinii have been extirpated (63 FR 

54958), including six records in the 

2006 CNDDB (Table 1) and potentially 

others from the eastern San Fernando 

Valley that were not included in the 

CNDDB because of inadequate data (63 

FR 54961). Berberis nevinii has been 

extirpated from several historic 

locations in Los Angeles and San 

Bernardino Counties, including the San 

Fernando Valley and Pacoima Wash 

area (CNDDB 2006), the confluence of 

San Francisquito Canyon and Santa 

Clara River (Boyd 1987, p. 2), and north 

of the City of Claremont (CNDDB 2006). 

We are unable to ascertain whether two 

of the three historic records from the 

Arroyo Seco near Pasadena and one 

1904 record from Big Tejunga Wash are 

extant and/or accurately mapped. A 

historic record of B. nevinii from south 

of Rim Forest in the San Bernardino 

Mountains in San Bernardino County is 

suspected to be of cultivated origin and 

is apparently extirpated (Boyd 1987, p. 

2). In the Loma Linda Hills area of 

southern San Bernardino County, two 

historic occurrences of B. nevinii from 

side canyons off San Timoteo Canyon 

appear to have been impacted by firerelated and/or landowner activities 

within the last 10 years (Latch 1997; 

Sanders 2006). One occurrence, which 

consisted of a single large clonal 

individual, has been extirpated (Sanders 

2006). The other occurrence has been 

reduced from seven individuals to 

perhaps only one or two (Latch 1997; 

Sanders 2006); we are unsure if the 

remaining plant(s) are located in 

southern San Bernardino County or 

extreme northern Riverside County. We 

are seeking additional information to 

clarify and verify these occurrences (see 

Public Comments Solicited section). 

The total number of Berberis nevinii 

may be fewer than 500 from all known 

sites; about half are naturally occurring 

individuals and over half are on private 

lands (CNDDB 2006; 63 FR 54958). The 

majority of occurrences consist of five or 

fewer plants, with many consisting of 

only one or two large (old) individuals 

(CNDDB 2006). Potential habitat within 

the species’ range has been fairly 

extensively botanically explored and/or 

surveyed (Boyd 1987, p. 3), including 

surveys of potential habitat on the San 

Bernardino National Forest in 1988 and 

1989, which yielded no new 

occurrences (Mistretta 1989, 

unpaginated). Additional survey efforts 

for B. nevinii likely will not yield new 

large occurrences of the species. 

However, the discovery of new 

occurrences within the last 15 to 20 

years (e.g., from Lopez Canyon in Los 

Angeles County and from western 

Riverside County) suggests that 

individual plants and small stands 

remain to be found (Boyd 1987, p. 3; 

Boyd and Banks 1995, unpaginated; 

Soza and Boyd 2000, p. 4). Potential 

habitat for B. nevinii may occur on the 

Angeles National Forest on the south 

slope of the San Gabriel and Liebre 

Mountains (Soza and Boyd 2000, p. 4), 

potentially from Pacoima to Lopez 

Canyon, within the vicinity of San 

Antonio Wash, and within Cajon 

Canyon (Soza 2003, based on expertise 

of Boyd, Rancho Santa Ana Botanic 

Garden); on the San Bernardino 

National Forest in the Crafton Hills area 

and on the west side of the San Jacinto 

Mountains (Soza 2003); on the 

Cleveland National Forest in the front 

range of the Agua Tibia/Palomar 

Mountains, including the northern edge 

of the Agua Tibia Wilderness (Boyd and 

Banks 1995, unpaginated; Reiser 2001, 

unpaginated; Soza 2003); and south and 


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east of Vail Lake (e.g., Temecula Creek 

drainage, the hills between Temecula 

Creek and Wilson Creek), and the 

canyons draining Big Oak Mountain 

north of Vail Lake (Boyd et al. 1989, p. 

16; Soza 2003). 

To summarize, native, extant 

occurrences of Berberis nevinii include 

a single individual in Lopez Canyon in 

the San Gabriel Mountains on the 

Angeles National Forest in Los Angeles 

County (CNDDB 2006); a single 

individual on private land in Scott 

Canyon in the Loma Linda Hills south 

of Redlands in San Bernardino County 

(Boyd 1987, pp. 5, 7); one or two 

individuals on private land in a side 

canyon off San Timoteo Canyon near 

the San Bernardino/Riverside County 

line (referred to herein as the San 

Timoteo Canyon occurrence) (Boyd 

1987, pp. 5, 7; Latch 1997; Sanders 

2006); an unknown number of 

individuals in the Soboba Badlands east 

of the San Jacinto Wildlife Area (Service 

2004, p. 331); and other scattered 

occurrences in Riverside County, 

including the largest remaining and 

most significant group of native 

occurrences in the Vail Lake/Oak 

Mountain area in southern Riverside 

County (Service 2004, p. 331; CNDDB 

2006). This latter site has many 

scattered stands of B. nevinii, each with 

one or more individuals, collectively 

consisting of about 200 to 250 plants 

(Boyd et al. 1989, p. 14; 63 FR 54958). 

The majority of the individuals in the 

Vail Lake/Oak Mountain area are 

located on private land to the south of 

the lake, with the largest stand on the 

Vail Lake peninsula (formerly a ridge 

separating Kolb Creek and Temecula 

Creek prior to the flooding of Vail Lake). 

Two plants on Big Oak Mountain north 

of Vail Lake are on BLM lands, and five 

plants occur southeast of Vail Lake on 

the Cleveland National Forest, close to 

the Agua Tibia Wilderness Area (herein 

referred to as the Cleveland National 

Forest occurrence) (63 FR 54956; 

CNDDB 2006). 

Species Reproduction 

There appears to be little to no 

regeneration by seed occurring at most 

Berberis nevinii sites, and low seed set 

(including plants bearing fruit without 

seed) and lack of viable seed has been 

noted over the years by both botanists 

and horticulturalists trying to obtain 

seed for propagation, even from within 

larger occurrences (Wolf 1940; Boyd 

1987, pp. 3, 44, 56; Mistretta and Brown 

1989, pp. 4–5; Mistretta 1994, p. 186). 

According to Mistretta (1994, p. 187) 

and O’Brien (2001, p. 19), unpublished 

molecular studies from the early 1990s 

revealed almost no genetic diversity 

within B. nevinii, with one exception at 

Vail Lake, suggesting that the species 

has been subjected to a series of 

population bottlenecks that may have 

led to severe inbreeding depression and 

reproductive failure (Mistretta 1994, p. 

187). However, Mistretta (2006) 

cautioned against drawing conclusions 

from this study because the techniques 

used, which were state-of-the-art at the 

time, require far more conjecture in 

determining relationships, especially at 

the population level, than newlydeveloped techniques. On the other 

hand, cultivators of B. nevinii have long 

observed an apparent lack of 

morphological differences between 

individual plants, even young seedlings 

(O’Brien 2001, p. 19), which may also 

indicate low genetic variation within 

the species. 

We know of only a few native 

occurrences where regeneration by seed 

may have occurred in the recent past. 

As noted by Nishida in Boyd (1987, p. 

62), the largest stand of Berberis nevinii 

located on the Vail Lake peninsula 

consists of approximately 111 

individuals of various sizes, including a 

seedling, which suggests a range of ages 

and past reproduction. Another 

occurrence on the peak located north of 

Vail Lake (referred to as ‘‘Big’’ Oak 

Mountain; Boyd et al. 1989, p. 1) 

consists of two plants: a very old one 

and a substantially smaller one at some 

distance to the northeast (Wallace 2006) 

(hereinafter, we also refer to this peak as 

‘‘Big Oak Mountain,’’ whereas ‘‘Oak 

Mountain’’ refers to the general area to 

the north and west of Vail Lake). 

Additionally, fruit with seed was noted 

at the B. nevinii occurrence on 

Cleveland National Forest to the 

southeast of Vail Lake in 2006 (Wallace 

2006). The San Timoteo Canyon 

occurrence also contained individuals 

of several size (age) classes (Boyd 1987, 

pp. 51–52); however, regeneration by 

seed probably has not occurred at this 

site in many decades, and this 

occurrence has been at least partially 

destroyed (Sanders 2006). 

Regeneration by seed has been noted 

at a few naturalized (i.e., nonnative) 

stands of Berberis nevinii. The San 

Francisquito Canyon site appears to 

have one of the most vigorous naturally 

regenerating occurrences of the species, 

as indicated by a wide range of ages of 

mature individuals, the presence of 

numerous seedlings and immature 

plants (Boyd 1987, p. 7; Mistretta and 

Brown 1989, p. 10; Soza and Boyd 2000, 

p. 2), and fruits containing seed (Boyd 

1987, p. 7). Reproduction has also been 

observed at the Palomar site in San 

Diego County, a site presumed to be of 

cultivated origin (Boyd 1987, pp. 3, 73). 

The role that naturalized occurrences 

will have in conservation of the species 

is not known at this time. The San 

Francisquito Canyon occurrence may at 

some point be determined to play a 

recovery role because it is one of only 

three occurrences for the species that we 

know has more than 20 individuals 

(CNDDB 2006), it is one of only a few 

occurrences with any evidence of 

reproduction by seed, and it may 

contain the only verifiable remnant of 

the extirpated San Fernando Valley 

population. 

According to the California 

Department of Fish and Game (CDFG) 

(2005, p. 272), ‘‘the lack of reproduction 

and recruitment at most sites, and the 

very low number of individuals at most 

populations [of Berberis nevinii] in the 

absence of fire are indicative of fire 

responsive species.’’ Fire is a normal 

occurrence in chaparral communities, 

and chaparral species, including B. 

nevinii, which is known to stump sprout 

(i.e., generate new growth from burnt 

stumps) following fire (Soza and Fraga 

2003, p. 2; Sanders 2006), are resilient 

and/or adapted to such perturbations 

(Keeley 1991, p. 84; Tyler 1996, p. 2182. 

However, the specific response of B. 

nevinii to changes to the natural fire 

regime (fire frequency, intensity, and/or 

timing), such as has occurred or may 

occur in southern California’s chaparral/ 

shrublands due to increased 

urbanization, are not fully understood 

(63 FR 54964, 54965). 

The final listing rule (63 FR 54956, 

October 13, 1998) identified 

urbanization, off-road vehicle use, brush 

fires, recreation, and roadway projects 

(e.g., widening) as factors contributing 

to the imperilment and/or extirpation of 

Berberis nevinii from within parts of its 

native range (63 FR 54961). The alluvial 

scrub communities within the San 

Fernando and San Gabriel valleys have 

been greatly modified, damaged, or 

destroyed, including several sites where 

B. nevinii presumably had occurred. 

Other threats to the long-term survival 

of the species, as identified in the final 

listing rule, include the introduction of 

invasive, nonnative plants that compete 

with native species and contribute to 

combustible fuel loads, and fire 

management strategies that alter natural 

fire processes (63 FR 54961). 

Previous Federal Actions 

Berberis nevinii was listed as 

endangered by the State of California in 

January 1987, and federally listed as 

endangered on October 13, 1998 (63 FR 

54956). In the final listing rule, we 

determined that the designation of 

critical habitat was not prudent because 

the designation would not be beneficial 


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to the conservation of the species. On 

August 10, 2004, the Center for 

Biological Diversity and the CNPS filed 

a lawsuit in U.S. Federal Court, 

Northern District of California against 

the Secretary of the Interior challenging 

the not prudent determination of critical 

habitat for B. nevinii and four other 

plant species that occur in southern 

California (Center for Biological 

Diversity et al. v. Gale Norton, Secretary 

of the Department of the Interior, C–04–

3240 JL). On December 21, 2004, a U.S. 

District Court Judge signed an order 

granting a stipulated settlement 

agreement between the parties. The 

Service agreed to propose critical 

habitat for B. nevinii, if prudent, on or 

before January 30, 2007, and finalize the 

designation on or before January 30, 

2008. We are hereby withdrawing our 

previous not prudent determination of 

critical habitat for B. nevinii. We have 

reconsidered our not prudent finding, 

and now believe that identification of 

primary constituent elements and 

essential areas (critical habitat 

designation) may provide educational 

information to individuals, local and 

State governments, and other entities. 

We also do not have any documentation 

that over-collection has increased 

significantly since the species was 

listed. We now believe that the benefits 

of identifying essential habitat for B. 

nevinii outweigh the potential risk of 

over-collection and thus we are now 

proposing critical habitat for this 

species. 

A recovery plan for Berberis nevinii 

has not yet been completed. For more 

information on previous Federal actions 

concerning B. nevinii, refer to the final 

listing rule published in the Federal 

Register on October 13, 1998 (63 FR 

54956). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as (i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) Essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7(a)(2) of the Act through 

the prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7(a)(2) requires 

consultation on Federal actions that are 

likely to result in the destruction or 

adverse modification of critical habitat. 

The designation of critical habitat does 

not affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7(a)(2) is a purely protective 

measure and does not require 

implementation of restoration, recovery, 

or enhancement measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management 

considerations or protection. Areas 

outside of the geographic area occupied 

by the species at the time of listing may 

only be included in critical habitat if 

they are essential for the conservation of 

the species. Accordingly, when the best 

available scientific data do not 

demonstrate that the conservation needs 

of the species require additional areas, 

we will not designate critical habitat in 

areas outside the geographical area 

occupied by the species at the time of 

listing. An area currently occupied by 

the species that was not known to be 

occupied at the time of listing will 

likely, but not always, be essential to the 

conservation of the species and, 

therefore, typically included in the 

critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Habitat is often dynamic, and 

species may move from one area to 

another over time. Furthermore, we 

recognize that designation of critical 

habitat may not include all of the 

habitat areas that may eventually be 

determined to be necessary for the 

recovery of the species. For these 

reasons, critical habitat designations do 

not signal that habitat outside the 

designation is unimportant or may not 

be required for recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 


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direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(2) of the 

Act, we used the best scientific data 

available in determining areas that 

contain the features essential to the 

conservation of Berberis nevinii. This 

included information from the following 

sources: (1) Final listing rule (63 FR 

54956, October 13, 1998); (2) CNDDB 

(2006); (3) California Native Species 

Field Survey Forms submitted to the 

CDFG; (4) herbarium collection records 

from the Consortium of California 

Herbaria and Rancho Santa Ana Botanic 

Garden; (5) Western Riverside County 

MSHCP; (6) botanical assessments and 

inventories of southern California; (7) 

management documents and survey/ 

monitoring reports for B. nevinii on U.S. 

Forest Service land; (8) technical reports 

prepared by the Rancho Santa Ana 

Botanic Garden; (9) communications 

from species experts; (10) aerial 

photography; and (11) regional 

Geographic Information System (GIS) 

layers for land ownership, soils, and 

vegetation (California Wildlife Habitat 

Relationships (CWHR) System). We also 

used information collected by Service 

biologists who conducted site visits to 

Big Oak Mountain (CNDDB element 

occurrence 38) and the Cleveland 

National Forest (CNDDB element 

occurrence 31). 

We have also reviewed available 

information that pertains to the habitat 

requirements of Berberis nevinii. There 

is limited information on habitat 

requirements for this species, but the 

primary sources are: (1) CNDDB (2006); 

(2) California Native Species Field 

Survey Forms submitted to CDFG; (3) 

habitat parameters compiled by Boyd 

(Rancho Santa Ana Botanic Garden) 

based on the results of a field survey by 

Nishida (Rancho Santa Ana Botanic 

Garden technical report No. 3 (1987, p. 

7)); (4) botanical assessment of the Vail 

Lake property for the Riverside County 

Planning Department (1989) and of 

Cleveland National Forest (1995); (5) 

monitoring data and reports for the 

Angeles National Forest (Soza and Boyd 

2000 and Soza and Fraga 2003); (6) 

information from regional GIS layers for 

soils, vegetation, and percent slope 

values; and (7) information received 

from local species experts, including 

descriptions of suitable habitat by the 

USFS (Soza 2003) that were based on 

the expertise and extensive field 

experience of Boyd (Rancho Santa Ana 

Botanic Garden). A variety of other peerreviewed and non-peer-reviewed 

articles were reviewed for background 

information on plant ecology, natural 

history, and biology, as well as plant 

response to fire and other disturbances 

in California shrubland (e.g., chaparral) 

communities. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we consider 

those physical or biological features 

(PCEs) that are essential to the 

conservation of the species, and within 

areas occupied by the species at the 

time of listing, that may require special 

management considerations or 

protection. These include, but are not 

limited to: Space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific primary constituent 

elements required for Berberis nevinii 

are derived from the biological needs of 

the species as described in the final 

listing rule (63 FR 54956, October 13, 

1998), as well as information contained 

in this proposed rule. 

Space for Growth and Reproduction 

Berberis nevinii has a limited natural 

distribution; it typically occurs in small 

stands (less than 20 individuals, and 

often only one or two) in scattered 

locations in Los Angeles, San 

Bernardino, and Riverside Counties, 

with the largest native occurrence (as 

defined by CNDDB) consisting of several 

stands and totaling about 134 

individuals to the south of Vail Lake in 

Riverside County (Boyd 1987; CNDDB 

2006). Within these areas, B. nevinii 

requires appropriate soils, topography, 

cover, and drainage within the 

landscape to provide space, food, water, 

air, light, minerals, or other nutritional 

or physiological requirements for 

individual and population growth and 

reproduction. 

Characterizing Berberis nevinii habitat 

is difficult due to the varied soils, 

bedrock substrates, and topography on 

which this species naturally occurs. 

Additionally, this species is known to 

tolerate a wide range of environmental 

conditions in cultivation (Mistretta and 

Brown 1989, p. 6). Berberis nevinii 

typically occurs at elevations from 900 

to 2,000 ft (300 to 650 m) (63 FR 54958), 

but most native occurrences and the 

naturalized San Francisquito population 

are between 1,400 and 1,700 ft (427 to 

518 m) in elevation (Boyd 1987, p. 2; 

CNDDB 2006). One native occurrence 

on the Big Oak Mountain summit north 

of Vail Lake in Riverside County is at 

approximately 2,700 ft (823 m) 

elevation, and scattered naturalized 

occurrences are found outside the 900 to 

2,000-foot (300 to 650 m) elevation 

range (Boyd 1987, pp. 42, 75; CNDDB 

2006). Berberis nevinii has been found 

in varied topography from nearly flat 

sandy washes, terraces, benches, and 

canyon floors to gravelly wash margins, 

steeply-sloped banks of drainages, steep 

rocky slopes, ridges, and mountain 

summits (CNDDB 2006). 

Based on 1987 field surveys by 

Nishida, native Berberis nevinii 

occurring on slopes in Scott Canyon and 

south of Vail Lake were found in areas 

with slopes of 35 to 70 percent slope 

(Boyd 1987, pp. 7, 45, 62, 65, 68). Other 

B. nevinii plants occurring on slopes in 

the Vail Lake/Oak Mountain area 

generally occupy areas of less than 70 

percent slope, based on Service GIS data 

(2006). Naturalized (i.e., nonnative) 

occurrences are known to grow on 

steeper slopes (e.g., 85 to 120 percent 

slope) in San Francisquito Canyon 

(Boyd 1987, p. 7, based on field surveys 

by Nishida). Berberis nevinii generally 

occurs on north, northeast, or 

northwest-facing slopes; however, 

exceptions to this have been noted, 

including several occurrences, both 

native and naturalized, found on south 

and west-facing slopes (Boyd 1987, pp. 

7, 40, 77; Boyd et al. 1989, p. 24; Soza 

and Boyd 2000, p. 22; CNDDB 2006). 

Berberis nevinii is found on a variety 

of soils and bedrock substrates. Native 

occurrences appear to be strongly 

associated with alluvial soils or soils 

derived from nonmarine sedimentary 

based substrates, especially sandy 

arkose (sandstone derived from granitic 

material) (Boyd 1987, p. 7; Boyd and 

Banks 1995, unpaginated; Soza and 

Boyd 2000, p. 25). Most of the plants at 

Vail Lake are found in small stands on 

Temecula arkose soils around the 

southern end of the lake, with scattered 

individuals in the ‘‘badlands’’ to the 

southeast and southwest (Boyd and 

Banks 1995, unpaginated). Several 

small, isolated stands on the south flank 

of Big Oak Mountain are associated with 

metasedimentary substrates and springs 

or seeps (Boyd et al. 1989, p. 14; Soza 

2003), and two plants at the Big Oak 

Mountain summit occur on heavy 

adobe/gabbro type soils with high 

water-holding capacity formed from 

metavolcanic geology (Mesozoic basic 


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intrusive rock) (Soza 2003). The 

Cleveland National Forest occurrence is 

found at the contact between 

sedimentary (arkose) and 

metasedimentary substrates (Boyd and 

Banks 1995, unpaginated). Berberis 

nevinii has also been found growing on 

Pelona schist outcrops and granitic 

knolls (Boyd 1987, p. 7; Soza and Boyd 

2000, p. 22). 

Overlying occurrence polygons with 

NRCS soils data, native Berberis nevinii 

occurrences appear to be associated 

with the following soil series: 

Riverwash at the Lopez Canyon site in 

Los Angeles County; sandy loam of the 

Saugus series in Scott Canyon and 

coarse sandy loam of the Metz series 

from the San Timoteo Canyon location 

in San Bernardino County; and at least 

17 different soil series in the Vail Lake/ 

Oak Mountain area in Riverside County, 

including Monserate sandy loams; 

Hanford coarse sandy loams; fine sandy 

loams of the Arlington and Greenfield, 

Pachappa, and Cajalco series; Cajalco 

rocky fine sandy loams; rocky loams of 

the Lodi and Las Posas series; and loams 

of the Las Posas, San Timoteo, and San 

Emigdio series (Service GIS data 2006). 

Additional soil series found within 

mapped B. nevinii occurrences include 

gullied land and riverwash primarily 

south of Vail Lake, and badland to the 

north and southeast of Vail Lake. 

Occurrences north of Vail Lake on the 

south slopes of Big Oak Mountain and 

its summit are mapped primarily as 

Auld clay, 8 to 15 percent slopes, 

Cajalco rocky fine sandy loam, 15 to 50 

percent slopes, eroded, and Las Posas 

loam and rocky loam, 8 to 15 percent 

slopes, eroded. The B. nevinii site on the 

Cleveland National Forest south of Vail 

Lake is mapped as gullied land and 

coarse sandy loam of the Hanford series, 

8 to 15 percent slopes, eroded (Service 

GIS data 2006). 

Native occurrences of Berberis nevinii 

are generally found growing in welldrained soils, and are known from xeric 

slopes and rock outcrops. According to 

Lenz and Dourley (1981, as cited in 

Mistretta and Brown 1989, p. 5), B. 

nevinii is considered a drought-tolerant 

species, but it will also accept large 

amounts of water in cultivation without 

apparent damage. Observations of native 

occurrences suggest that, within its 

general habitat, B. nevinii may be 

associated with more mesic 

microhabitats. Niehaus (1977, p. 2) 

noted that B. nevinii occurs mostly at 

the margins of dry washes in or below 

the foothill zone, but is not present in 

the driest portion of a wash. At some 

sites, B. nevinii is associated with 

species such as Lepidospartum 

squamatum and Prunus ilicifolia that 

require groundwater (Niehaus 1977, p. 

2). Many of the plants in the Vail Lake 

area are growing on mesic north or 

northwest facing slopes. Several stands 

are in canyons draining the south flank 

of Big Oak Mountain and are associated 

with springs or seepages (Boyd et al. 

1989, p. 14). The two plants on the 

summit of Big Oak Mountain are on clay 

soils with a high water-holding 

capacity. In the late spring and early 

summer, this site may receive greater 

moisture in the form of condensation 

from intrusion of marine air (Soza 

2003). 

Berberis nevinii occurs in association 

with the following plant communities: 

alluvial scrub, cismontane (e.g., 

chamise) chaparral, coastal sage scrub, 

oak woodland, and/or riparian scrub or 

woodland (Boyd 1987, pp. 2, 7; Boyd 

1989, pp. 6–8; 63 FR 54958; CNPS 2001, 

p. 96; CNDDB 2006). Native B. nevinii 

in Lopez Canyon, Scott Canyon, and 

San Timoteo Canyon, as well as many 

of those found in the Vail Lake/Oak 

Mountain area, occur within the 

California Wildlife Habitat 

Relationships (CWHR) landcover 

described as coastal scrub or mixed 

chaparral (Service GIS data 2006). 

Berberis nevinii is occasionally found in 

coastal oak woodland in the Vail Lake/ 

Oak Mountain area, characterized by 

open to dense stands of the large 

evergreen coast live oak (Quercus 

agrifolia) in close association with 

surrounding scrub vegetation (Boyd et 

al. 1989, p. 7). In the Vail Lake area, this 

woodland type is found primarily in 

sandy washes, benches, and canyons on 

north-facing slopes, near ephemeral 

stream channels, and/or associated with 

springs (Boyd et al. 1989, pp. 7–8). The 

San Francisquito site, where B. nevinii 

has apparently naturalized, also has 

some coastal oak woodland, and Q. 

agrifiolia is locally common south of B. 

nevinii in the canyon bottom at the 

Lopez Canyon site (Soza and Boyd 2000, 

pp. 23, 26). Several stands in the Vail 

Lake area occur within the CWHR 

landcover described as valley foothill 

riparian, and several occurrences are 

also partly characterized as annual 

grassland (Service GIS data 2006). The 

Scott Canyon site is described as having 

an abundance of annual grasses (Boyd 

1987, pp. 44–48, CNDDB 2006). 

Extant, native occurrences of Berberis 

nevinii are often found in association 

with one or more of the following 

chaparral and coastal sage scrub species: 

Eriogonum fasciculatum, Artemisia 

californica, Adenostoma fasciculatum, 

Rhus ovata, R. trilobata, or R. 

integrifolia, Salvia mellifera, Sambucus 

mexicana, Prunus ilicifolia, Rhamnus 

crocea, and Quercus berberidifolia 

(Boyd 1987, p. 2; CNDDB 2006). Several 

native occurrences are associated with 

coastal oak woodland or riparian/ 

alluvial scrub vegetation, such as 

Quercus agrifolia, Populus fremontii, 

Salix laevigata, Platanus racemosa, 

Baccharis glutinosa, and/or 

Lepidospartum squamatum (CNDDB 

2006). Boyd (1987, p. 2) has noted that 

certain desert floral elements such as 

Encelia farinosa, Chrysothamnus 

nauseosus, Artemisia tridentata, 

Chilopsis linearis, Yucca schidigera, 

Opuntia parryii, and Atriplex canescens 

are often characteristic of the general 

area and many of the specific sites 

where B. nevinii occurs in the vicinity 

of Vail Lake. The presence of typically 

desert floral elements likely reflects the 

transitional nature of these sites 

between the cismontane area to the west 

and the Colorado Desert to the east 

(Boyd et al. 1989, p. 4). 

Several observers have noted that 

seedlings and immature Berberis nevinii 

tend to occur in areas with some 

measure of protection, either in the 

shade or cover of another plant (Boyd 

1987, pp. 77–78, based on field surveys 

by Nishida; Mistretta and Brown 1989, 

p. 10). This suggests the need for some 

fire-free period to allow for canopy 

growth. However, Nishida (Boyd et al. 

1987, p. 77) noted that mature 

individuals were located in areas where 

they were exposed to full sunlight, and 

Reiser (2001, unpaginated) noted that 

this species frequently towers above 

associated subshrubs. Based on 

observations in the field, Nishida 

suggested that seedlings may be shade 

tolerant, but that as B. nevinii matures, 

it may require more sunlight (Mistretta 

and Brown 1989, Attachment: ‘‘Report 

on the Population and Ecological Data 

of Mahonia nevinii’’ by Joy Nishida, p. 

1). A similar shade/sunlight 

requirement has been noted for several 

other resprouting chaparral shrub 

species, where seedlings and saplings 

are found mostly in the shade of other 

plants and seldom in the open, but 

recruitment into the shrub population 

appears to require the later development 

of a canopy gap, such as may be created 

by a fire event (Keeley 1992, p. 1206). 

We have little information about 

pollinators, seed dispersal mechanisms, 

or the reproductive biology of this 

species. Berberis nevinii has perfect 

(hermaphroditic) yellow flowers 

clustered in loose racemes that bloom 

from March through April, and fleshy, 

yellowish-red to red berries with plump, 

brown seeds that are present from May 

to July (Wolf 1940, unpaginated; Munz 

1974, p. 245; Neihaus 1977, p. 1; Morris 

2006). Species-specific information on 

pollinators is lacking, but B. nevinii may 


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be pollinated by bee species. According 

to Mussen (2002), California’s native 

Berberis species are ‘‘visited (and 

probably pollinated) by honey bees’’

(Apis mellifera), and according to the 

U.S. Department of Agriculture (2006), 

native Berberis species ‘‘provide 

significant forage for native bees.’’ We 

also do not know if B. nevinii is able to 

self-fertilize, as the genus Berberis 

contains species that are both selfcompatible and self-incompatible 

(Anderson et al. 2001, p. 227). Seed 

dispersal by both birds and mammals is 

widespread within the genus Berberis 

(Young and Young 1992, p. 52; Vines 

1960, pp. 271–273), and thus is likely 

within B. nevinii. Wolf (1940, 

unpaginated) noted that the abundant 

fruits of B. nevinii are eaten by various 

bird species. Seasonal rains flowing 

through washes and channel drainages 

may also disperse seed of B. nevinii 

located in these areas (Roof 1968, p. 22; 

Mistretta and Brown 1989, p. 6; Soza 

and Boyd 2000, p. 3). However, due to 

the lack of specific information on 

habitat requirements for B. nevinii 

related to pollination and seed 

dispersal, we were unable to fully 

incorporate these potential areas into 

our identification of essential habitat for 

the species. 

Berberis nevinii does not appear to 

reproduce by vegetative means 

(rootsprout) to any great extent 

(Mistretta and Brown 1989, p. 5; Boyd 

2006); in other words, it does not 

regularly produce clones (genetically 

identical direct descendants) that are 

well separated from the parent 

individual through the process of 

rooting at nodes in the rhizome, as is the 

case with some other members of the 

genus Berberis. One potential exception 

is an (extirpated) occurrence south of 

Redlands in San Bernardino County, 

which appeared to be reproducing only 

by vegetative spread (Sanders 2006). 

Because vegetative reproduction 

appears to be uncommon, Mistretta and 

Brown (1989, p. 5) concluded that 

perpetuation of the species is likely 

dependent on its occasional production 

of viable seed. 

Landscape Ecology and Population 

Demographics of Berberis nevinii 

Many extant occurrences of Berberis 

nevinii are associated with chaparral or 

coastal sage scrub. Fire is a natural 

occurrence in southern California 

shrublands, and plants occurring in 

these vegetation communities are 

resilient and/or adapted to these types 

of disturbances (Keeley 1991, p. 84; 

Tyler 1996, p. 2182). Postfire 

regeneration mechanisms among 

California shrubland species can 

generally be described as obligate 

seeding, obligate sprouting, or 

facultative sprouting (Kelly and Parker 

1990, p. 114). Obligate seeders are 

typically killed by fire and rely entirely 

on seeds for regeneration. Most have 

locally dispersed seeds that persist in 

the soil seed bank until dormancy is 

broken by an environmental stimulus, 

such as intense heat (Keeley 1991, p. 

82). Obligate sprouters, on the other 

hand, are rarely killed by fire, but rather 

resprout from roots, lignotubers, or 

epicormic buds (Kelly and Parker 1990, 

p. 114). These species have seeds that 

do not require fire for germination, but 

require fire-free periods for recruiting 

new seedlings (Keeley 1991, p. 82). In 

some species, postfire regeneration 

occurs by both sprouts and seeds, and 

fire-caused mortality is variable 

(facultative sprouters) (Kelly and Parker 

1990, p. 114). 

Berberis nevinii is known to 

regenerate by stump sprouting following 

fire (Soza and Fraga 2003, p. 2; Sanders 

2006; Mistretta and Brown 1989, p. 5). 

Mature individuals often possess a basal 

burl (Mistretta and Brown 1989, p. 5), a 

swelling at the junction of roots and 

stems that allows a plant to sprout from 

the base and regenerate after a fire that 

kills above-ground vegetation. The 

germination response of B. nevinii to 

fire is not known. According to Soza 

and Boyd (2003, p. 2), Soza (2006), and 

the USFS (2005, p. 237), post-fire 

surveys on the Angeles and Cleveland 

National Forests found recruitment from 

both resprouting and seeding. This 

suggests that this species may also 

regenerate by seed following fire. 

Berberis nevinii’s response to altered 

fire regimes (e.g., changes to fire 

frequency, timing, and/or intensity) is 

also unknown (63 FR 54961), such as 

resprouting response and soil seedbank 

persistence under conditions of high fire 

frequency. Because southern California 

shrublands are adapted to a natural fire 

regime, plants within these 

communities likely require such 

conditions for long-term survival (63 FR 

54961). 

Comparison of the contemporary fire 

regime in southern California to that of 

the natural regime (i.e., pre-fire 

suppression) shows that in the lower 

coastal valley and foothill zone, fire 

frequency has increased, and that high 

fire frequencies tend to occur in those 

areas where high human densities 

interface with relatively undeveloped 

landscape (Keeley et al. 1999, p. 1831; 

Keeley and Fotheringham 2001, p. 1545; 

Wells et al. 2004, p. 147; Keeley 2006, 

p. 382). However, fire suppression has 

kept fires in check so that most stands 

burn within the range of natural 

variation (Keeley 2006, p. 382). 

Additionally, while coastal sage scrub 

and chaparral have the largest amount 

of area that has burned multiple times 

over the past century and have the 

highest potential fire frequencies of all 

vegetation community types, only the 

former clearly shows an increasing 

trend in area burned over this time 

period (Wells et al. 2004, pp. 148, 151). 

Too frequent fire on the landscape 

could potentially kill mature, 

resprouting Berberis nevinii as well as 

young plants before they have reached 

their reproductive potential and before 

the soil seed bank is replenished (Boyd 

1991, pp. 7, 9). Repeated burnings over 

short intervals could eventually lead to 

type conversion of chaparral/shrublands 

to nonnative annual grassland (Boyd 

1991, p. 9; Keeley et al. 1999, p. 1831), 

as has been observed in areas 

surrounding urban centers (Keeley 2006, 

p. 382). Therefore, conservation of rare 

plants in southern California, such as B. 

nevinii, that are associated with 

chaparral, coastal sage scrub, or other 

shrubland vegetation communities may 

require preservation of enough land 

around known occurrences to allow for 

maintenance of natural fire regimes 

(Boyd 1991, pp. 10–11). However, we do 

not have sufficient information to 

quantify the extent of the area necessary 

to do so for particular B. nevinii 

occurrences. Therefore, we are unable to 

fully incorporate these potential areas 

into our identification of essential 

habitat for B. nevinii. 

Life history characteristics and 

population demographics of Berberis 

nevinii are largely unknown and 

unstudied. Berberis nevinii is a longlived species (>50 years) (Mistretta and 

Brown 1989, p. 5) with low 

reproductive rates in the wild due to 

sporadic production of fertile seed 

(Mistretta and Brown 1989, p. 5). It has 

been suggested that B. nevinii may be a 

paleoendemic relic (Reiser 2001, 

unpaginated), which could explain its 

limited (small and widely scattered) 

distribution and low reproductive rates 

in the wild (Soza 2003). 

The ability of Berberis nevinii to 

stump sprout following disturbance 

(e.g., fire), as well as its great longevity, 

may play an important role in 

persistence of the species. As discussed 

in Garcia and Zamora (2003, p. 921), 

there may be a population maintenance 

trade-off for long-lived plants between 

replacement of individuals by seeding 

and persistence of established plants. A 

persistence strategy may allow plants to 

survive through unfavorable conditions, 

potentially to reproduce again when 

conditions are more favorable (Garcia 

and Zamora 2003, p. 924). As 


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mentioned previously, there appears to 

be little to no regeneration by seed 

occurring at most B. nevinii 

occurrences. However, since the species 

is long-lived, it may produce seed 

intermittently and life-time seed 

production may be a more important 

consideration in terms of perpetuation 

of the species than annual seed 

production. 

Primary Constituents Elements for 

Berberis nevinii 

Under our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to the conservation of Berberis nevinii. 

All areas proposed as critical habitat for 

B. nevinii are currently occupied, are 

within the species’ historic geographic 

range, and contain sufficient PCEs to 

support at least one life history 

function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species, and the requirements of the 

habitat necessary to sustain the essential 

life history functions of the species, we 

have determined that Berberis nevinii’s 

PCEs are: 

(1) Low-gradient (i.e., nearly flat) 

canyon floors, washes and adjacent 

terraces, and mountain ridge/summits, 

or eroded, generally northeast- to 

northwest-facing mountain slopes and 

banks of dry washes typically of less 

than 70 percent slope that provide space 

for plant establishment and growth; 

(2) Well-drained alluvial soils 

primarily of non-marine sedimentary 

origin, such as Temecula or sandy 

arkose soils; soils of the CajalcoTemescal-Las Posas soil association 

formed on gabbro (igneous) or latite 

(volcanic) bedrock; metasedimentary 

substrates associated with springs or 

seeps; and heavy adobe/gabbro-type 

soils derived from metavolcanic geology 

(Mesozoic basic intrusive rock) that 

provide the appropriate nutrients and 

space for growth and reproduction; and 

(3) Scrub (chaparral, coastal sage, 

alluvial, riparian) and woodland (oak, 

riparian) vegetation communities 

between 900 and 3,000 ft (275 and 915 

m) in elevation that provide the 

appropriate cover for growth and 

reproduction. 

This proposed designation is designed 

for the conservation of those areas 

containing PCEs necessary to support 

the life history functions that were the 

basis for the proposal. Because not all 

life history functions require all the 

PCEs, not all proposed critical habitat 

will contain all the PCEs. Units are 

designated based on sufficient PCEs 

being present to support one or more of 

the species’ life history functions. Some 

units contain all PCEs and support 

multiple life processes, while some 

units contain only a portion of the PCEs 

necessary to support the species’

particular use of that habitat. Where a 

subset of the PCEs is present at the time 

of designation, this rule protects those 

PCEs and thus the conservation function 

of the habitat. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we used the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Berberis nevinii. 

This species naturally occurs in small, 

isolated stands across its geographic 

range, with several known occurrences 

consisting of only a single large and 

presumably very old individual. At 

most sites, there is little to no evidence 

of reproduction. The Vail Lake/Oak 

Mountain area in western Riverside 

County has the highest concentration of 

native B. nevinii, representing several 

size (age) classes. It occurs in numerous 

stands scattered throughout the area, 

with the largest number of plants 

located south of Vail Lake and on the 

peninsula. The long-term conservation 

of B. nevinii will depend upon the 

protection of such extant, native 

occurrences and the maintenance of 

ecological functions within these sites. 

We delineated proposed critical 

habitat for Berberis nevinii using the 

following criteria: (1) Areas known to be 

occupied by naturally-occurring 

individuals of the species at the time of 

listing and areas that are currently 

occupied by naturally-occurring 

individuals; (2) areas within the historic 

range of the species; (3) areas containing 

one or more PCEs essential to the 

conservation of the species; and (4) 

areas currently occupied by more than 

two B. nevinii plants that show evidence 

of reproduction (i.e., fruits with seed, 

seedlings, or plants of various size/age 

classes) on site. For sites where there 

was no information available on 

reproduction or size/age class 

distribution, we assumed that 

reproduction had occurred at some 

point in the past if multiple B. nevinii 

plants were present. As discussed 

below, we also gave consideration to the 

ecological uniqueness of sites. 

Whether naturalized occurrences may 

play a role in conservation of the 

species is currently unknown. However, 

the naturalized occurrences represent 

some of the largest (in terms of number 

of individuals) and most vigorously 

reproducing occurrences of the species, 

and could potentially play a role in 

preserving genetic diversity. At least 

one naturalized occurrence (San 

Francisquito Canyon) may contain an 

individual and/or descendents of an 

individual that originated from a 

location where B. nevinii no longer 

occurs (i.e., the San Fernando Valley). 

Thus, we will continue to explore the 

potential conservation value of 

naturalized occurrences, and consider 

these occurrences in future recovery 

actions as appropriate. 

We are aware of 39 records for 

Berberis nevinii rangewide documented 

by the CNDDB (2006), of which we 

consider 19 to be extant, native 

occurrences. All of the extant, native 

occurrences were known at the time of 

listing, although each occurrence was 

not specifically described in the final 

listing rule (63 FR 54956, October 13, 

1998). The majority of these occurrences 

are in the vicinity of Vail Lake and Oak 

Mountain, which is described within 

the final listing rule as one of the main 

geographical areas occupied by the 

species. 

As discussed in the Background 

section of this proposed rule, our 

Western Riverside County MSHCP 

database contains 32 records of extant 

Berberis nevinii occurrences from the 

vicinity of Vail Lake/Oak Mountain 

alone, as well as one record from the 

Soboba Badlands. However, many of the 

MSHCP records overlap and some 

appear to duplicate CNDDB records. 

Accompanying data, such as number of 

plants, origin (native versus cultivated), 

and habitat associations are largely 

lacking, making it impossible to 

accurately quantify the actual number of 

distinct occurrences or plants in this 

area (Service 2004, pp. 330–331). We 

also do not know the specific location 

of many of these occurrences. Therefore, 

we did not rely on the MSHCP 

occurrences for determining critical 

habitat, but rather we are seeking 

additional information to clarify these 

records (see Public Comments Solicited 

section). 

Of the 19 extant, native occurrences 

in the CNDDB (2006), we consider only 

six in Riverside County in the vicinity 

of Vail Lake/Oak Mountain to meet our 

criteria for designating critical habitat 

(CNDDB element occurrences 24, 31, 32, 

35, 36, and 38). Five of the six 

occurrences consist of more than two 

individuals, and evidence of 

reproduction (multiple size classes, 

seedlings, and/or fruit with seed) is 

known for three of the occurrences 

(CNDDB element occurrences 24, 31, 

and 38). We do not know if 

reproduction has occurred at the other 

three sites (CNDDB element occurrences 

32, 35, and 36), but we believe that it 

is possible given that these occurrences 


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represent some of the largest groupings 

of the species. While we propose the 

areas that support these occurrences as 

critical habitat, we are seeking 

additional information on the 

reproductive status and exact numbers 

of individuals per stand (see Public 

Comments Solicited section). For a 

detailed description of each of these six 

occurrences, see the Proposed Critical 

Habitat Designation section of this 

proposed rule. 

We do not have adequate information 

to determine the status of six Berberis 

nevinii occurrences recorded in the 

CNDDB (2006). Three occurrences in 

Los Angeles County may be extant, but 

their existence has not been confirmed 

since the early to mid 1900s (two 

records in Arroyo Seco near Pasadena 

(CNDDB element occurrences 8 and 9) 

and one record in Big Tejunga Wash 

near San Fernando (CNDDB element 

occurrence 10), which may be 

mismapped). Three other occurrences 

have vague location descriptions and/or 

may be mismapped, including one in 

Los Angeles County (CNDDB element 

occurrence 18), one in Riverside County 

(CNDDB element occurrence 14), and 

one in San Diego County (CNDDB 

element occurrence 45). We are seeking 

additional information to verify and/or 

clarify these records (see Public 

Comments Solicited section). 

We evaluated whether geographically 

(e.g., Los Angeles and San Bernardino 

Counties) peripheral native occurrences 

would fit into our criteria for identifying 

critical habitat. Despite the biological 

conservation arguments raised by Lesica 

and Allendorf (1995; p. 753, 754) to 

conserve peripheral populations, we 

found that these Berberis nevinii 

occurrences did not meet our criteria for 

designation of critical habitat because 

they consisted of very few individuals 

(often only one) and did not appear to 

be reproducing. For example, the Lopez 

Canyon (CNDDB element occurrence 43) 

and Scott Canyon (CNDDB element 

occurrence 5) occurrences each consist 

of only a single large (old) individual 

with no signs of past or current 

reproduction by seed (CNDDB element 

occurrences 43 and 5). The San Timoteo 

Canyon occurrence (CNDDB element 

occurrence 4) has an unknown number 

of individuals (potentially only one), 

and reproduction has likely not 

occurred at this site in many decades 

(Sanders 2006). 

We also considered the ecological 

uniqueness of sites because occurrences 

within unique habitats may harbor 

genetic diversity that allows for 

persistence in these areas (Lesica and 

Allendorf 1995, p. 757). We determined 

that ecologically unique habitats were 

essential to conservation of Berberis 

nevinii, and we included these areas in 

proposed critical habitat if they were 

occupied by more than a single large 

(i.e., mature) individual. Areas occupied 

by only one large individual represent 

sites where regeneration is not 

occurring; thus, we did not consider 

these areas to be essential to 

conservation of the species. 

We also evaluated whether 

maintaining adjacent unoccupied 

habitat or corridors between 

occurrences may be important to 

facilitate and allow for pollination and 

seed dispersal within and between 

stands of Berberis nevinii. However, we 

do not have any information that 

suggests a certain quantity of habitat is 

necessary to maintain the pollinator 

species associated with B. nevinii 

occurrences. The few available reports 

actually noted that the genus Berberis is 

pollinated by generalist species, such as 

honey bees (Lebuhn and Anderson 

1994, p. 259; Mussen 2002, 

unpaginated). It may also be necessary 

to maintain the natural fire regime 

associated with this species’ habitat. 

However, sufficient information is not 

available to quantify the extent of the 

area necessary to maintain the natural 

fire regime for particular B. nevinii 

occurrences. Therefore, we are unable to 

fully incorporate these areas into our 

identification of essential habitat. 

The Vail Lake/Oak Mountain area has 

the largest number of extant, native 

Berberis nevinii, which are located in 

numerous scattered stands. Because an 

extreme catastrophic event could wipe 

out one or more stands of B. nevinii, 

protecting multiple stands throughout 

this area may be important to the longterm conservation of the species. The 

areas that we are proposing as critical 

habitat are scattered to the north, south, 

and east of Vail Lake, which may 

provide some protection against 

complete loss of the species from this 

locality due to a catastrophic event, 

such as flooding or high intensity fire. 

We delineated critical habitat unit 

boundaries in the following manner: 

(1) We identified all areas known to 

be occupied at the time of listing and/ 

or currently occupied by Berberis 

nevinii using location data in the 

CNDDB (2006); 

(2) We classified each of these 

occurrences as to their origin (native or 

cultivated), status (extant or extirpated), 

number of plants, and evidence of 

reproduction, where possible; 

(3) We determined which occurrences 

contain features essential to the 

conservation of the species using the 

criteria described above; 

(4) Using GIS, we overlaid the 

occurrences identified in number 3 

above on aerial imagery and compared 

the polygon locations for these 

occurrences with location information 

provided in field survey forms to 

narrow down and refine the location of 

B. nevinii occurrence polygons; and 

(5) We then overlaid these 

occurrences with a series of 100 x 100 

meter grid cells. Areas where the 

occurrence polygon intersected with a 

grid cell were retained. We used GIS 

soil and vegetation data to ensure that 

habitat within the grid cells containing 

the occurrence polygons contained one 

or more of the PCEs. Using aerial 

photography, we removed areas that did 

not contain any of the PCEs for the 

species (e.g., aquatic habitat in Vail 

Lake). Critical habitat designations were 

then described and mapped using 

Universal Transverse Mercator (UTM) 

North American Datum 27 (NAD 27) 

coordinates. 

Areas meeting these criteria were then 

analyzed to determine if any existing 

conservation or management plans exist 

that benefit the species and their PCEs. 

Berberis nevinii is included as a covered 

species in the Western Riverside County 

MSHCP. As a result, occupied areas on 

private land within the area covered by 

the MSHCP (Plan Area) are being 

proposed for exclusion from the final 

designation of critical habitat for this 

species under section 4(b)(2) of the Act 

(see Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act for a detailed 

discussion). 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including developed 

areas such as buildings, paved areas, 

and other structures that lack PCEs for 

Berberis nevinii. The scale of the maps 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

proposed rule have been excluded by 

text in the proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species and/or primary constituent 

elements in adjacent critical habitat. 

We propose to designate critical 

habitat in areas that contain naturally 

occurring Berberis nevinii plants (i.e., 

not of cultivated origin or consisting of 

outplanted individuals). We have 

determined these areas were occupied at 


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the time of listing and contain sufficient 

primary constituent elements (PCEs) to 

support life history functions essential 

for the conservation of the species. No 

areas outside the geographical area 

occupied at the time of listing have been 

proposed for designation. Additionally, 

information provided in comments on 

the proposed critical habitat designation 

and draft economic analysis will be 

evaluated and considered in the 

development of the final designation for 

B. nevinii. 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts of the 

requested incidental take. We often 

exclude non-Federal public lands and 

private lands that are covered by an 

existing operative HCP and executed 

implementation agreement (IA) under 

section 10(a)(1)(B) of the Act from 

designated critical habitat because the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

section 4(b)(2) of the Act. All of the 

private land included in this proposed 

critical habitat designation is in the 

vicinity of Vail Lake and Oak Mountain 

and is covered by the Western Riverside 

County MSHCP. We are proposing to 

exclude private lands covered under the 

MSHCP from the final designation of 

critical habitat for Berberis nevinii 

because we believe that the benefits of 

exclusion outweigh the benefits of 

inclusion (See Relationship of Critical 

Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act section 

for more details on the Western 

Riverside County MSHCP and a 

complete discussion and analysis of the 

benefits of exclusion and inclusion of 

these lands in the critical habitat 

designation). 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain primary constituent elements 

that may require special management 

considerations or protection. As stated 

in the final listing rule (63 FR 54956, 

October 13, 1998), threats to the species 

include urban development, off-road 

vehicle use, human recreation (e.g., 

horseback riding), highway projects, fire 

management strategies (suppression 

measures, brush clearing) that alter 

natural fire processes to which native 

plant communities are adapted and 

which they require for long-term 

survival, and the introduction of 

invasive, nonnative plants that may 

compete with Berberis nevinii and/or 

contribute to combustible fuel loads (63 

FR 54961). These threats can directly or 

indirectly result in the loss, 

modification, degradation, and/or 

fragmentation of B. nevinii habitat, 

thereby eliminating or reducing 

potential habitat for seed germination, 

seedling establishment, plant growth 

and maturation, and/or population 

growth. Individually or combined, these 

threats may require special management 

considerations or protection of the PCEs 

as addressed here and in more detail 

within the individual critical habitat 

unit descriptions that follow. 

Urbanization, flood control measures, 

road widening, and habitat degradation 

from extensive recreational use have 

contributed to the loss of Berberis 

nevinii habitat and have apparently 

resulted in the extirpation of several 

occurrences, particularly within the San 

Fernando Valley of Los Angeles County 

(63 FR 54961). Urbanization may 

destroy, degrade, fragment, or otherwise 

alter the topography, soil, and 

vegetation community structure in ways 

that make areas less suitable for B. 

nevinii. Land grading for residential 

development and road projects may 

affect the topography of the site (PCE 1); 

alter soil composition and structure 

(PCE 2); change vegetation community 

composition and structure through 

clearing or thinning of vegetation and 

the introduction of nonnative plants 

(PCE 3); increase erosion potential (PCE 

1 and 2); and change hydrological 

(drainage and water infiltration) 

patterns, thereby decreasing the quality 

and extent of available habitat for B. 

nevinii. Additionally, urban 

development near this species may 

increase the frequency of fire. No urban 

development is expected to directly 

impact the known occurrences of B. 

nevinii on Federal or private land in the 

vicinity of Vail Lake and Oak Mountain, 

although indirect impacts associated 

with increased urbanization may occur. 

Recreational activities may also 

impact the physical and biological 

features determined to be essential for 

conservation of the species by 

destroying, degrading, fragmenting, or 

otherwise altering the topography, soil, 

and vegetation community in ways that 

make areas less suitable for Berberis 

nevinii. For example, off-highway 

vehicle use, hiking, camping, horseback 

riding, and recreational facility 

development in or near B. nevinii 

occurrences could alter or destroy 

surface and subsurface structure 

through trampling and clearing or 

thinning of vegetation, and the 

introduction of nonnative plants (PCE 

3), soil disturbance and/or compaction 

(PCE 2), and increased erosion and 

changes to hydrological (drainage and 

water infiltration) patterns, which may 

in turn affect the topography, soil, and 

vegetation of the site (PCE 1, 2, and 3). 

Activities associated with fire 

management, such as fuel treatments, 

prescribed burns, and wildfire 

suppression, may also impact the 

physical and biological features 

essential for conservation of the species. 

The creation of firebreaks, brush 

clearing or thinning, and the use of 

heavy equipment and off-road vehicles 

for fire management could physically 

remove or disturb soils and alter soil 

composition (PCE 2), remove or destroy 

vegetation (PCE 3), increase erosion, and 

alter the topography (PCE 1) and 

hydrologic patterns in or near Berberis 

nevinii occurrences. Fire management 

activities could facilitate the incursion 

or spread of invasive, nonnative plants 

by potentially creating (disturbance) 

conditions that increase the competitive 

edge of nonnative species over native 

species, thereby altering the 

composition of the vegetation 

community (PCE 3). Prescribed fires that 

are too frequent or that occur at times 

of the year atypical of the natural fire 

regime could also result in changes to 

vegetation community and structure 

(PCE 3). Alternatively, if fire 

management activities are successful in 

keeping fire from the landscape, and 

high canopy cover ensues, plant species 

that require full or partial sun (i.e., 

canopy gaps) to effectively establish 

may become underrepresented in the 

plant community, as will those plants 

that require fire for seed germination. 

Proposed Critical Habitat Designation 

We are proposing one unit as critical 

habitat for Berberis nevinii: the Agua 

Tibia/Vail Lake unit. This critical 

habitat unit is further divided into six 

subunits. The critical habitat unit and 

subunits described below constitute our 

best assessment at this time of areas 

that: (1) Have extant, native occurrences 

consisting of more than two B. nevinii 

plants with evidence of reproduction; 

and (2) contain some or all of the 

primary constituent elements that may 

require special management 

considerations or protection. All of 

these units were occupied at the time of 

listing and are currently occupied to the 

best of our knowledge. Table 2 identifies 

the approximate area (ac/ha) of 

proposed critical habitat for B. nevinii, 

and the areas being considered for 


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exclusion from the final critical habitat 

designation under section 4(b)(2) of the 

Act. Areas proposed for exclusion are 

those areas covered under the Western 

Riverside County MSHCP (see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act section for a detailed 

discussion). Table 3 identifies the 

occupancy status for each unit. 

TABLE 2.—AREAS PROPOSED FOR CRITICAL HABITAT DESIGNATION FOR BERBERIS NEVINII, AND AREAS BEING

CONSIDERED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION UNDER SECTION 4(B)(2) OF THE ACT. 

Critical habitat unit Land ownership Area proposed as critical 

habitat 

Area being considered for exclusion 

from final critical 

habitat 

1. Agua Tibia/Vail Lake: 

1A. Big Oak Mountain Summit ...................................... BLM ....................................... 15 ac (6 ha) .......................... 0 ac (0 ha) 

1B. Agua Tibia Mountain Foothills ................................ USFS .....................................

Private ...................................

17 ac (7 ha) ..........................

5 ac (2 ha) ............................

0 ac (0 ha) 

5 ac (2 ha) 

1C. South Flank Big Oak Mountain ............................... Private ................................... 87 ac (35 ha) ........................ 87 ac (35 ha) 

1D. North of Vail Lake ................................................... Private ................................... 22 ac (9 ha) .......................... 22 ac (9 ha) 

1E. South of Vail Lake/Peninsula .................................. Private ................................... 251 ac (102 ha) .................... 251 ac (102 ha) 

1F. Temecula Creek East .............................................. Private ................................... 20 ac (8 ha) .......................... 20 ac (8 ha) 

Total ........................................................................ ............................................... 417 ac (169 ha) .................... 385 ac (156 ha) 

TABLE 3.—OCCUPANCY OF CRITICAL HABITAT UNITS DESIGNATED FOR BERBERIS NEVINII. 

Critical habitat subunit Occupied at 

time of listing? 

Occupied 

currently? 

Acres 

(hectares) 

Subunit 1A: Big Oak Mountain Summit ................................................................................. Yes ................... Yes ................... 15 (6) 

Subunit 1B: Agua Tibia Mountain Foothills ........................................................................... Yes ................... Yes ................... 22 (9) 

Subunit 1C: South Flank Big Oak Mountain ......................................................................... Yes ................... Yes ................... 87 (35) 

Subunit 1D: North of Vail Lake .............................................................................................. Yes ................... Yes ................... 22 (9) 

Subunit 1E: South of Vail Lake/Peninsula ............................................................................ Yes ................... Yes ................... 251 (102) 

Subunit 1F: Temecula Creek East ........................................................................................ Yes ................... Yes ................... 20 (8) 

Total ................................................................................................................................ ........................... ........................... 417 (169) 

Below, we present brief descriptions 

of the proposed subunits and reasons 

why they meet the definition of critical 

habitat for Berberis nevinii. 

Unit 1: Agua Tibia/Vail Lake 

Unit 1 comprises approximately 417 

ac (169 ha) and is divided into six 

subunits: Big Oak Mountain Summit 

(1A), Agua Tibia Mountain Foothills 

(1B), South Flank Big Oak Mountain 

(1C), North of Vail Lake (1D), South of 

Vail Lake/Peninsula (1E), and Temecula 

Creek East (1F). These lands in Unit 1 

contain the PCEs for Berberis nevinii 

and also may be important for 

maintaining genetic diversity for the 

species as they include occurrences in 

ecologically unique areas. 

Subunit 1A: Big Oak Mountain Summit 

Subunit 1A consists of approximately 

15 ac (6 ha) located on Big Oak 

Mountain to the north of Vail Lake in 

southern Riverside County. This subunit 

consists entirely of federally owned 

land managed by BLM. Two Berberis 

nevinii individuals of different sizes 

(ages) are known to occur in this unit on 

the summit of Big Oak Mountain at 

approximately 2,700 ft (823 m) elevation 

(i.e., the lower edge of the marine layer) 

(PCE 1 and 3). One individual is an old 

plant that is covered in lichens, and the 

other individual is considerably smaller 

and at some distance to the northeast of 

the older plant. This location is 

considered unusual (i.e., ecologically 

unique) for the species in that it is at 

higher elevation and on relatively flat 

clay lenses consisting of heavy adobe/ 

gabbro type soils with high waterholding capacity, derived from 

Mesozoic basic intrusive rock (PCE 2) 

(Soza 2003). Soils in this area are 

classified primarily as Auld clay, 8 to 15 

percent slopes, and Las Posas loam, 8 to 

15 percent slopes, eroded (PCE 2) 

(Service GIS data 2006). This occurrence 

is located in an open grassland area 

with chaparral nearby. Associated plant 

species include Chenopodium 

californicum, Avena fatua, 

Harpagonella palmeri, Plantago erecta, 

Galium porrigens, and Delphinium 

species. 

We are proposing this subunit as 

critical habitat even though it is 

occupied by only two Berberis nevinii 

plants because it represents an 

ecologically unique site for the species 

and contains the features essential to the 

conservation of B. nevinii. Additionally, 

this site contains naturally-occurring B. 

nevinii of different sizes (ages), 

indicative of successful reproduction in 

the past. Because this occurrence is on 

an ecologically unique site, this subunit 

may be important in terms of preserving 

genetic diversity throughout the range of 

the species. Berberis nevinii occupied 

this subunit at the time of listing, as 

identified in the final listing rule (63 FR 

54956, October 13, 1998). 

Bureau of Land Management land on 

Big Oak Mountain consists of three 

small parcels totaling 888 ac (360 ha), 

which is surrounded by private land. 

The primary threats to Berberis nevinii 

habitat in this area that may require 

special management considerations or 

protection of the PCEs are the indirect 

effects of urban/residential 

development, such as increased human 

recreation; incursion or spread of 

invasive, nonnative plants; and changes 

to the natural fire regime (i.e., increased 

ignitions and fire frequency, and 

shortened fire return intervals that can 

lead to type conversion of shrublands to 

annual grasslands). The BLM Resource 

Management Plan indicates that these 

parcels are closed to motorized vehicles 

and livestock grazing (BLM 1994, p. 28). 

Special management considerations or 

protection of the PCEs may be required 


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to minimize disturbance to the 

vegetation and soils within this subunit; 

control invasive, nonnative plants; and 

maintain the natural hydrologic and fire 

regime of the area. While this site falls 

within the Conservation Area for the 

Western Riverside County MSHCP, this 

area is federal land managed by BLM. 

Therefore, we are not proposing BLMmanaged lands within this subunit for 

exclusion under section 4(b)(2) of the 

Act. 

Subunit 1B: Agua Tibia Mountain 

Foothills 

Subunit 1B consists of approximately 

22 ac (9 ha) located near the Agua Tibia 

Wilderness Area in southern Riverside 

County. This subunit consists of 17 ac 

(7 ha) of federally owned land managed 

by the USFS (Cleveland National Forest) 

and 5 ac (2 ha) of private land. Five 

Berberis nevinii individuals are known 

from this area and are located at the 

edge of a stream channel (PCE 1) 

growing in association with coast live 

oak and riparian woodland species (PCE 

3). Nearby chaparral includes such 

species as Quercus berberidifolia, 

Adenostoma fasciculatum, and 

Haplopappus squarrosus, and nearby 

desert species include Yucca schidigera 

(CNDDB 2006). These B. nevinii plants 

are growing under a canopy of Quercus 

agrifolia and Platanus racemosa with 

the following species: Heteromeles 

arbutifolia, Q. berberidifolia, Elymus 

condensatus, Mimulus aurantiacus, 

Lonicera subspicata, Pterostegia 

drymarioides, and Epilobium canum. 

Soils in this area are classified as gullied 

land and coarse sandy loam of the 

Hanford series, 8 to 15 percent slopes, 

eroded (PCE 2) (Service GIS data 2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii and it contains a 

relatively large natural occurrence of the 

species. Additionally, Service personnel 

visited this site in June 2006 while B. 

nevinii was in fruit, and found that 

several of the fruits had three to four 

seeds, which may be significant for a 

species that appears to rarely set seed. 

Berberis nevinii occupied this subunit at 

the time of listing, as identified in the 

final listing rule (63 FR 54956, October 

13, 1998). 

The Berberis nevinii occurrence on 

Cleveland National Forest lands is not 

as well protected as the occurrence on 

the Angeles National Forest (USFS 

2005, p. 238). Threats to B. nevinii 

habitat in this area are associated with 

the proximity of State Highway 79 and 

include recreational impacts (off-road 

vehicle use, shooting) and increased risk 

of fire ignition (USFS 2005, p. 232). Offroad vehicle use has occurred adjacent 

to Highway 79, close to but not within 

occupied habitat. Additionally, this 

occurrence has shown signs of 

disturbance from road activities (USFS 

2005, p. 235), and Highway 79 is 

proposed for realignment (USFWS 2004, 

p. 332), which could adversely affect 

this occurrence. The USFS does not 

anticipate that the magnitude of impacts 

related to camping and hiking will be 

substantial, and these impacts will be 

avoided or mitigated by use of Forest 

Plan standards (USFS 2005, p. 234). 

Also, invasive, nonnative plants may 

pose a threat to B. nevinii habitat quality 

at this site. 

One of the greatest threats to occupied 

habitat on the Cleveland National Forest 

is from wildland fire and the 

management of fire and fuels (i.e., fire 

suppression and prevention activities). 

The Wildland-Urban Interface (WUI) 

Defense Zone overlaps about 43 percent 

of occupied habitat on Cleveland 

National Forest (USFS 2005, p. 237; 

USFWS 2005, p. 127). Some plants and/ 

or habitat within the WUI Defense Zone 

could be removed or degraded under the 

Revised Land and Resource 

Management Plan due to fuel removal 

for fire protection or overly frequent fuel 

treatments (USFWS 2005, p. 127). 

Special management considerations or 

protection of the PCEs may be required 

to minimize disturbance to the 

vegetation and soils within this subunit; 

control invasive, nonnative plants; and 

maintain the natural fire regime of the 

area. 

This subunit falls within the 

Conservation Area for the Western 

Riverside County MSHCP; however, the 

majority of this subunit is Federal land 

managed by the USFS. Therefore, we are 

not proposing USFS lands within this 

subunit for exclusion under section 

4(b)(2) of the Act. On the other hand, we 

are proposing to exclude the private 

lands within this subunit from the final 

designation of critical habitat for 

Berberis nevinii. Please see Relationship 

of Critical Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act—

Western Riverside County Multiple 

Species Habitat Conservation Plan for a 

detailed discussion. 

Subunit 1C: South Flank Big Oak 

Mountain 

Subunit 1C consists of approximately 

87 ac (35 ha) of private land located 

north of Vail Lake on the south flank of 

Big Oak Mountain in southern Riverside 

County. This occurrence is mapped as 

four small subpopulations by CNDDB 

(2006); while the total number of plants 

is unknown, 17 Berberis nevinii plants 

were attributed to one of the 

subpopulations based on a 1989 survey 

(CNDDB 2006). Berberis nevinii 

individuals in this area are found on 

south-facing drainage bottoms in 

chaparral and sage scrub vegetation 

communities (PCE 1 and 3) (CNDDB 

2006). Associated species include 

Adenostoma fasciculatum, 

Arctostaphylos glauca, Artemisia 

californica, and Brickellia californica. 

Soils in this area are classified primarily 

as Cajalco rocky fine sandy loam, 15 to 

50 percent slopes, eroded; with Las 

Posas rocky loam, 15 to 50 percent 

slopes, severely eroded; and Auld clay, 

8 to 15 percent slopes to a lesser extent 

(PCE 2) (Service GIS data 2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii, and it contains a 

relatively large natural occurrence of the 

species (CNDDB 2006). This subunit has 

one of several relatively large 

occurrences (potentially the second 

largest) of B. nevinii in the Vail Lake 

area and thus has a greater potential for 

regeneration by seed. This site may also 

be ecologically unique for the species; 

Boyd and others (1989, p. 14) indicated 

that B. nevinii located in canyons 

draining the south flank of Big Oak 

Mountain are associated with springs or 

seepages, which appears to be unusual 

for the species. Berberis nevinii 

occupied this subunit at the time of 

listing, as identified in the final listing 

rule (63 FR 54956, October 13, 1998). 

The primary threats to Berberis 

nevinii habitat in this area that may 

require special management 

considerations or protection of the PCEs 

are the indirect effects of urban/ 

residential development, such as 

increased human recreation; erosion; 

incursion or spread of invasive, 

nonnative plants; and changes to the 

natural fire regime (i.e., increased 

ignitions and fire frequency and 

shortened fire return intervals) that can 

lead to type conversion of shrublands to 

annual grasslands. 

This subunit falls within the 

Conservation Area for the Western 

Riverside County MSHCP, and we are 

proposing to exclude the private lands 

within this subunit from the final 

designation of critical habitat for B. 

nevinii. Please see Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act—

Western Riverside County Multiple 

Species Habitat Conservation Plan for a 

detailed discussion. 


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Subunit 1D: North of Vail Lake 

Subunit 1D consists of approximately 

22 ac (9 ha) of private land located 

immediately north of Vail Lake in 

southern Riverside County. This 

occurrence is mapped along a canyon 

just above the highwater line of Vail 

Lake, and consists of seven plants based 

on a 1989 survey (CNNDB 2006). 

Berberis nevinii individuals in this area 

are found in sandy and gravelly soils in 

a drainage bottom (PCE 1 and 2). The 

vegetation community is classified as 

coastal scrub and valley foothill riparian 

(PCE 3) (Service GIS data 2006). At this 

site, B. nevinii is associated with 

Adenostoma fasciculatum, 

Arctostaphylos glauca, Rhus 

integrifolia, Juniperus californica, and 

Rhamnus crocea; and to the north is a 

large grove of Prosopis glandulosa 

(CNDDB 2006). Soils in this area are 

classified as badland (PCE 2) (Service 

GIS data 2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii, and it contains a 

relatively large natural occurrence of the 

species (CNDDB 2006). This subunit is 

important for conserving B. nevinii as it 

is one of several relatively large 

occurrences in the Vail Lake area and 

thus has a greater potential for 

regeneration by seed. Berberis nevinii 

occupied this subunit at the time of 

listing, as identified in the final listing 

rule (63 FR 54956, October 13, 1998). 

The primary threats to Berberis 

nevinii habitat in this area that may 

require special management 

considerations or protection of the PCEs 

are the indirect effects of urban/ 

residential development, such as 

increased human recreation; erosion; 

incursion or spread of invasive, 

nonnative plants; and changes to the 

natural fire regime (i.e., increased 

ignitions and fire frequency, and 

shortened fire return intervals that can 

lead to type conversion of shrublands to 

annual grasslands). This subunit falls 

within the Conservation Area for the 

Western Riverside County MSHCP, and 

we are proposing to exclude the private 

lands within this subunit from the final 

designation of critical habitat for B. 

nevinii. Please see Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans (HCPs)—Exclusion 

Under Section 4(b)(2) of the Act—

Western Riverside County Multiple 

Species Habitat Conservation Plan for a 

detailed discussion. 

Subunit 1E: South of Vail Lake/ 

Peninsula 

Subunit 1E consists of approximately 

251 ac (102 ha) of private land located 

on the south and southwest side of Vail 

Lake in southern Riverside County. This 

site has the largest known natural 

occurrence of Berberis nevinii, 

collectively consisting of 134 plants 

based on a 1987 survey (Boyd 1987, pp. 

7, 61–72; CNDDB 2006). These plants 

are located in several stands along both 

sides of the southwest arm of Vail Lake, 

the south shore and peninsula, and part 

of the west shore of the southeast arm 

of Vail Lake. Berberis nevinii 

individuals in this area are found in 

canyons, in a wash of 15 percent slope, 

and on north-facing ridges and slopes 

between 35 and 70 percent slope (PCE 

1) (Boyd 1987, p. 61–72; CNDDB 2006), 

primarily in association with coastal 

scrub, mixed chaparral, and valley 

foothill riparian communities (PCE 3) 

(Service GIS data 2006). Associated 

species include, but are not limited to: 

Artemisia californica, Adenostoma 

fasciculatum, Eriogonum fasciculatum, 

Salvia mellifera, Rhamnus crocea, Rhus 

ovata, Encelia farinosa, Baccharis 

glutinosa, and Yucca sp. (Boyd 1987, p. 

61–72). Soils in this area are classified 

as sandy loams (Arlington and 

Greenfield fine sandy loams, 8 to 15 

percent slopes, eroded; Cajalco rocky 

fine sandy loam, 15 to 50 percent 

slopes, eroded; Hanford coarse sandy 

loam, 8 to 15 percent slopes, eroded; 

Lodi rocky loam, 25 to 50 percent 

slopes, eroded; Monserate sandy loam, 8 

to 15 percent slopes, eroded; Monserate 

sandy loam, 15 to 25 percent slopes, 

severely eroded; Pachappa fine sandy 

loam, 2 to 8 percent slopes, eroded), 

gullied land, riverwash, and rough 

broken land (PCE 2) (Service GIS data 

2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii, and it contains the 

largest known natural occurrence of the 

species (CNDDB 2006). This location 

also contains the bulk of known 

individuals in the Vail Lake/Oak 

Mountain area. Additionally, we 

interpret that reproduction has occurred 

at this site in the past based on the 

presence of several size (age) classes. 

Berberis nevinii occupied this subunit at 

the time of listing, as identified in the 

final listing rule (63 FR 54956, October 

13, 1998). 

The primary threats to Berberis 

nevinii habitat in this area that may 

require special management 

considerations or protection of the PCEs 

are the indirect effects of urban/ 

residential development, such as 

increased human recreation; erosion; 

incursion or spread of invasive, 

nonnative plants (including Tamarix sp. 

and Nicotiana glauca) that can compete 

with native plant species; and changes 

to the natural fire regime (i.e., increased 

ignitions and fire frequency and 

shortened fire return intervals) that can 

lead to type conversion of shrublands to 

annual grasslands). Part of this 

occurrence has burned in the past, and 

regeneration by stump sprouting has 

been observed (CNDDB 2006). Part of 

this area is fairly inaccessible, except by 

boat; however, other parts are in close 

proximity to roads, equestrian trails, 

and the boat launch area (Boyd 1987, 

pp. 61–72; CNDDB 2006), and thus may 

be more heavily impacted by 

recreational use. Rising lake levels 

could also adversely affect those 

individuals occurring adjacent to the 

lake (Boyd 1987, pp. 61–72; CNNDB 

2006). 

This site falls within the Conservation 

Area for the Western Riverside County 

MSHCP, and we are proposing to 

exclude the private lands within this 

subunit from the final designation of 

critical habitat for B. nevinii. Please see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act—Western Riverside 

County Multiple Species Habitat 

Conservation Plan for a detailed 

discussion. 

Subunit 1F: Temecula Creek East 

Subunit 1F consists of approximately 

20 ac (8 ha) of private land located 

southeast of Vail Lake on the north side 

of Temecula Creek in Riverside County. 

This occurrence is mapped as two small 

subpopulations; while the total number 

of plants is unknown, three plants were 

attributed to one of the subpopulations 

based on a 1989 survey (CNDDB 2006). 

Berberis nevinii individuals in this area 

are found on a bank adjacent to a dry 

wash (PCE 1) in a mixed chaparral 

community (CNDDB 2006) with coastal 

scrub and annual grassland components 

(PCE 3) (Service GIS data 2006). 

Associated species include Adenostoma 

fasciculatum, Rhamnus crocea, 

Eriogonum fasciculatum, Rhus ovata, 

and Lonicera subspicata. Fine, sandy 

soils are characteristic of the area 

(CNDDB 2006), and soils are classified 

as Badland and San Timoteo loam, 8 to 

15 percent slopes, eroded (PCE 2) 

(Service GIS data 2006). 

We are proposing this subunit as 

critical habitat because it contains 

features essential to conservation of 

Berberis nevinii, and it contains a 

relatively large natural occurrence of the 


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species (CNDDB 2006). This subunit 

may be important for conserving B. 

nevinii as it is one of several relatively 

large occurrences in the Vail Lake area, 

and thus has a greater potential for 

regeneration by seed. Berberis nevinii 

occupied this subunit at the time of 

listing, as identified in the final listing 

rule (63 FR 54956, October 13, 1998). 

The primary threats to Berberis 

nevinii habitat in this area that may 

require special management 

considerations or protection of the PCEs 

are the indirect effects of urban/ 

residential development, such as 

increased human recreation; erosion; 

incursion or spread of invasive, 

nonnative plants; and changes to the 

natural fire regime (i.e., increased 

ignitions and fire frequency and 

shortened fire return intervals) that can 

lead to type conversion of shrublands to 

annual grasslands. 

This site falls within the Conservation 

Area for the Western Riverside County 

MSHCP, and we are proposing to 

exclude the private lands within this 

subunit from the final designation of 

critical habitat for B. nevinii. Please see 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act—Western Riverside 

County Multiple Species Habitat 

Conservation Plan for a detailed 

discussion. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F.3d 1059 (9th Cir 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service et 

al., 245 F.3d 434, 442F (5th Cir 2001)). 

Pursuant to current national policy and 

the statutory provisions of the Act, 

destruction or adverse modification is 

determined on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action because of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that are likely to adversely affect listed 

species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 


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adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect 

Berberis nevinii or its designated critical 

habitat will require section 7 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the Army Corps of 

Engineers under section 404 of the 

Clean Water Act or a permit under 

section 10(a)(1)(B) of the Act from the 

Service) or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to Berberis 

nevinii and Its Critical Habitat 

Jeopardy Standard 

The Service applies an analytical 

framework for Berberis nevinii jeopardy 

analyses that relies heavily on the 

importance of core area populations to 

the survival and recovery of B. nevinii. 

The section 7(a)(2) analysis is focused 

not only on these populations but also 

on the habitat conditions necessary to 

support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of Berberis nevinii in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, if a proposed Federal action 

is incompatible with the viability of the 

affected core area population(s), 

inclusive of associated habitat 

conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

population to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

For the reasons described in the 

Director’s December 9, 2004 

memorandum, the key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. Generally, the conservation role 

of Berberis nevinii critical habitat units 

is to support viable core area 

populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for Berberis nevinii is 

appreciably reduced. Activities that, 

when carried out, funded, or authorized 

by a Federal agency, may affect critical 

habitat and therefore should result in 

consultation for B. nevinii include, but 

are not limited to: 

(1) Activities that would directly or 

indirectly impact Berberis nevinii 

habitat and its PCEs. Such activities 

could include, but are not limited to: 

Residential or commercial development; 

fire prevention and suppression 

activities, such as the creation of 

firebreaks and brush clearing or 

thinning; off-road vehicle use; heavy 

recreational use; placement of 

recreational trailheads and facilities; 

road development, maintenance, or 

improvement projects, such as road 

grading, widening, or realignment; and 

flood control projects, such as 

vegetation stripping. These activities 

could change the physical and 

biological features of the habitat by 

affecting the topography of the site; by 

physically removing or damaging soils 

and associated vegetation; by altering 

the natural hydrology of the area; and by 

introducing and facilitating the spread 

of invasive, nonnative plant species. 

(2) Activities that would alter fire 

frequency in areas occupied by Berberis 

nevinii. Such activities could include, 

but are not limited to, prescribed burns 

that are too frequent or poorly timed. 

These activities could reduce the ability 

of B. nevinii to grow and reproduce by 

altering soil and vegetation community 

structure and composition (e.g., type 

conversion of shrublands into 

grasslands). 

(3) Activities that would foster the 

introduction or spread of nonnative 

vegetation. These activities could 

include, but are not limited to: Seeding 

areas with nonnative species following 

a fire; planting nonnative species or 

using non-weed free hay straw for slope, 

bank, and soil erosion control; and 

ground-disturbing activities, such as 

road maintenance, improvement, or 

construction projects. These activities 

could reduce the ability of Berberis 

nevinii to grow and reproduce because 

nonnative plant species may crowd out 

or otherwise compete with B. nevinii. 

Additionally, an increase in nonnative 

plants could change the fire regime by 

creating conditions prone to frequent 

fire (e.g., increased fuel loads and 

continuous fuel beds) and by altering 

soil composition. 

All lands proposed as critical habitat 

for Berberis nevinii, including those that 

have been proposed for exclusion from 

the final designation, contain features 

essential to conservation of the species. 

All of the subunits proposed for 

designation are within the geographical 

range of the species, were known to be 

occupied at the time of listing, and are 

currently occupied by B. nevinii. 

Federal agencies already consult with us 

on activities in areas occupied by B. 

nevinii, and if the species may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of B. nevinii. 

Exclusions Under Section 4(b)(2) of the 

Act 

There are multiple ways to provide 

protection and management for species’

habitat. Statutory and regulatory 

frameworks that exist at a local level can 

provide such protection and 

management, as can lack of pressure for 

change, such as areas too remote for 

anthropogenic disturbance. Finally, 

State, local, or private management 

plans as well as management under 

Federal agencies’ jurisdictions can 

provide protection and management 

that may lessen or even eliminate any 

appreciable benefit to a designation of 

critical habitat. When we consider a 

plan to determine its adequacy in 

protecting habitat, we consider whether 

the plan, as a whole will provide the 

same level of protection that designation 

of critical habitat would provide. The 

plan need not lead to exactly the same 

result as a designation in every 

individual application, as long as the 

protection it provides is equivalent, 

overall. In making this determination, 

we examine whether the plan provides 

management, protection, or 

enhancement of the PCEs that is at least 

equivalent to that provided by a critical 

habitat designation, and whether there 

is a reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 


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Section 4(b)(2) of the Act states that 

critical habitat shall be designated and 

revised on the basis of the best available 

scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Congressional record is clear that 

the Secretary is afforded broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. In addition, 

the Service is conducting an economic 

analysis of the impacts of the proposed 

critical habitat designation and related 

factors, which will be available for 

public review and comment. Based on 

public comment on that document, the 

proposed designation itself, and the 

information in the final economic 

analysis, additional areas beyond those 

identified in this assessment may be 

excluded from critical habitat by the 

Secretary under the provisions of 

section 4(b)(2) of the Act. This is 

provided for in the Act, and in our 

implementing regulations at 50 CFR 

242.19. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (90 to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998, 

Crouse et al. 2002, James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-Federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through cooperative 

conservation. This is evident in Service 

programs such as HCPs, Safe Harbors 

Agreements, Candidate Conservation 

Agreements, Candidate Conservation 

Agreements with Assurances, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

under certain circumstances have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). The Service 

believes that the judicious use of 

excluding specific areas of non-federally 

owned lands from critical habitat 

designations can contribute to species 

recovery and provide a superior level of 

conservation than critical habitat alone. 

The Department of the Interior’s 

cooperative conservation policy is the 

foundation for developing the tools of 

conservation. These tools include 

conservation grants, funding for 

Partners for Fish and Wildlife Program, 

the Coastal Program, and cooperativeconservation challenge cost-share 

grants. Our Private Stewardship Grant 

program and Landowner Incentive 

Program provide assistance to private 

land owners in their voluntary efforts to 

protect threatened, imperiled, and 

endangered species, including the 

development and implementation of 

Habitat Conservation Plans. 

Conservation agreements with nonFederal landowners (e.g., HCPs, 

contractual conservation agreements, 

easements, and stakeholder-negotiated 

State regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7(a)(2) consultations. In 

the past decade, we have encouraged 

non-Federal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

Exclusions Under Section 4(b)(2) of the 

Act for Berberis nevinii 

After consideration under section 

4(b)(2) of the Act, we are proposing to 

exclude the following areas from critical 

habitat for Berberis nevinii: private 

lands covered by the Western Riverside 

County MSHCP, which includes five ac 

(2 ha) of the Agua Tibia Mountain 

Foothills subunit (1B), and all of the 

South Flank Big Oak Mountain subunit 

(1C) (87 ac (35 ha)), North of Vail Lake 

subunit (1D) (22 ac (9ha)), South of Vail 

Lake/Peninsula subunit (1E) (251 ac 

(102 ha)), and Temecula Creek East 

subunit (1F) (20 ac (8ha)). We believe 

that: (1) The private lands’ value for 


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conservation is preserved by existing 

protective action, or (2) it is appropriate 

for exclusion pursuant to the ‘‘other 

relevant factor’’ provisions of section 

4(b)(2) of the Act. We specifically solicit 

comment, however, on the inclusion or 

exclusion of such areas. A detailed 

analysis of our exclusion of these lands 

under section 4(b)(2) of the Act is 

provided below; starting with General 

Principles of Section 7 Consultations 

Used in the 4(b)(2) Balancing Process. 

We evaluated existing management 

plans relevant to Federal lands 

occurring within the boundaries of 

proposed critical habitat for Berberis 

nevinii (i.e., Subunit 1A and part of 

Subunit 1B). While Federal lands within 

subunits 1A and 1B fall within the 

Conservation Area for the Western 

Riverside County MSHCP, neither of the 

Federal land management agencies 

(USFS and BLM) is obligated to manage 

these lands in compliance with the 

MSHCP. Therefore, we have not 

identified any benefits of exclusion for 

USFS or BLM managed lands within 

Unit 1 (Subunit 1A and part of Subunit 

1B) and are not proposing to exclude 

these lands under section 4(b)(2) of the 

Act. 

We also evaluated the USFS land 

management plan for the Cleveland 

National Forest and other relevant 

documents (i.e., USFS species 

management guide for Berberis nevinii 

and relevant MOUs) for potential 

exclusion under section 4(b)(2) of the 

Act. The USFS and Rancho Santa Ana 

Botanic Garden (Claremont, California) 

developed a species management guide 

for B. nevinii for the Angeles National 

Forest (Guide) (Mistretta and Brown 

1989). The Guide provides management 

direction to the USFS for protecting the 

species while minimizing conflicts with 

other resource values and recommends 

specific actions, such as developing and 

implementing site-specific monitoring 

plans and surveying potential habitat for 

additional occurrences of B. nevinii 

(Mistretta and Brown 1989). However, 

this management guide was written for 

the Angeles National Forest, and thus 

does not provide specific guidance or 

recommendations for the B. nevinii 

occurrence on the Cleveland National 

Forest, which is included in this 

proposed critical habitat designation 

(Subunit 1B). On the other hand, a 

monitoring program was initiated in 

1991 on the Angeles National Forest 

(Soza and Boyd 2000, p. 1), and the 

Angeles National Forest continues to 

utilize recommendations in the Guide 

when planning projects and managing 

ongoing activities (USFS 2005, p. 232). 

In 1997, a Memorandum of 

Understanding (MOU) was signed 

between the Service, USFS Cleveland 

National Forest, and CDFG for a 

Conservation Strategy for Coastal Sage 

Scrub and Interdigitated Habitats 

(Strategy) (USDA, USDI, CDFG 1997). 

These agencies agreed to work 

cooperatively to protect and preserve 

coastal sage scrub and interdigitated 

sensitive habitats and their associated 

species on the Cleveland National 

Forest and contiguous lands. Specific 

actions under the Strategy included, but 

were not limited to: developing 

standards and guidelines which provide 

management that compliments 

surrounding habitat preserves; 

establishing landscape-scale fire 

management objectives to guide fire and 

vegetation management activities; and 

conferring with the Service and CDFG 

regarding land exchange and acquisition 

proposals (USDA, USDI, CDFG 1997, 

pp. 4–5). Berberis nevinii is recognized 

as a species associated with coastal sage 

scrub and chaparral communities in the 

geographic area covered by this MOU. 

However, the MOU does not make any 

decisions regarding site-specific project 

proposals that may be implemented by 

any of the signatories to the MOU, nor 

does it compel managers to implement 

any specific activity. 

The USFS recently completed Revised 

Land and Resource Management Plans 

for the Cleveland, Angeles, and two 

other National Forests in southern 

California (Forest Plans) (USDA 2005). 

The goal of the Forest Plans is to 

describe a strategic direction for the 

management of the National Forests 

over the next 10 to 15 years. The Forest 

Plans also divide the National Forests 

into several ‘‘Land Use Zones.’’ The 

Land Use Zones were designed to 

describe the type of public use or 

administrative activities allowable in 

certain areas. The Land Use Zone where 

Berberis nevinii occurs on the Cleveland 

National Forest is classified as 

Developed Area Interface, which 

typically has a higher level of human 

use and infrastructure than that found 

in other Land Use Zones. As such, the 

USFS considers this B. nevinii 

occurrence to be less protected than the 

San Francisquito Canyon occurrence on 

the Angeles National Forest (USFS 

2005, p. 238). No new permanent loss of 

B. nevinii occupied habitat is expected 

under the Forest Plans with the 

potential exception of areas within the 

WUI Defense Zone, which overlaps 

about 40 percent of occupied B. nevinii 

habitat in the Cleveland National Forest 

(USFS 2005, p. 237; Service 2005, p. 

128). Thus, fire and fuels management 

within or near the WUI defense zones 

could directly and indirectly affect B. 

nevinii and its PCEs. 

Overall, the Forest Plans provides 

general guidance on management of 

lands within the Cleveland National 

Forest. However, like the MOU 

mentioned previously, it does not make 

any decisions regarding USFS sitespecific project proposals for 

implementation of the land resource 

management plan, nor does it compel 

managers to implement any specific 

activity. Thus, we have not identified 

any benefits of exclusion for USFS lands 

within Subunit 1B and are not 

proposing to exclude these lands under 

section 4(b)(2) of the Act. 

We also evaluated the existing BLM 

land management plan that covers BLM 

parcels on Big Oak Mountain (Subunit 

1A). Direction for management of these 

parcels is provided in the South Coast 

Resource Management Plan (RMP) for 

the California Desert District, Palm 

Springs South Coast Resource Area 

(BLM 1994). The goal of the RMP is to 

guide future management of 

approximately 296,000 acres of BLMadministered public lands within the 

South Coast Resource Area of southern 

California over the next 15 years (BLM 

1994, pp. 1, 8). The RMP addresses five 

planning issues, one of which is related 

to threatened, endangered, and other 

sensitive species. The geographic area 

covered by this RMP is divided into four 

Management Areas, with Oak Mountain 

falling within the Riverside San 

Bernardino County Management Area. 

The RMP directs management of the 

Oak Mountain parcels for sensitive 

plant and wildlife species by acquiring 

and consolidating sensitive plant 

habitat. These parcels (totaling 888 

acres) are closed to motorized vehicles 

and livestock grazing (BLM 1994, p. 28). 

While the RMP provides overall 

direction to the BLM for managing 

sensitive species and their habitat on 

BLM-administered land in the Oak 

Mountain area, it does not make any 

decisions regarding BLM site-specific 

project proposals for implementation of 

the land management plan, nor does it 

compel managers to implement any 

specific activity. Overall, the RMP 

provides general guidance that can 

either benefit or remain neutral to 

sensitive species. Additionally, the 

biological opinions that the Service 

issued on August 31, 1992, and 

November 22, 1993, for the preferred 

alternative of the South Coast RMP did 

not take into account effects to Berberis 

nevinii, which had not been federally 

listed yet. Thus, we have not identified 

any benefits of exclusion for BLM lands 

within Subunit 1A and are not 


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proposing to exclude these lands under 

section 4(b)(2) of the Act. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7(a)(2) 

of the Act to ensure that they are not 

likely to destroy or adversely modify 

critical habitat. There are two 

limitations to this regulatory effect. 

First, it only applies where there is a 

Federal nexus—if there is no Federal 

nexus, designation itself does not 

restrict actions that destroy or adversely 

modify critical habitat. Second, it only 

limits destruction or adverse 

modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 

7(a)(2) of the Act is triggered, the 

process may conclude informally when 

the Service concurs in writing that the 

proposed Federal action is not likely to 

adversely affect the listed species or its 

critical habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

measures and terms and conditions to 

implement such measures are only 

specified when the proposed action 

would result in the incidental take of a 

listed animal species. Reasonable and 

prudent alternatives to the proposed 

Federal action would only be suggested 

when the biological opinion results in a 

jeopardy or adverse modification 

conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F.3d 1059 (9th 

Cir 2004) (hereinafter Gifford Pinchot), 

the Service conflated the jeopardy 

standard with the standard for 

destruction or adverse modification of 

critical habitat when evaluating federal 

actions that affect currently-occupied 

critical habitat. The Court ruled that the 

two standards are distinct and that 

adverse modification evaluations 

require consideration of impacts on the 

recovery of species. Thus, under the 

Gifford Pinchot decision, critical habitat 

designations may provide greater 

benefits to the recovery of a species. 

However, we believe the conservation 

achieved through implementing habitat 

conservation plans (HCPs) or other 

habitat management plans is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7(a)(2) consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7(a)(2) 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any HCP or management plan which 

considers enhancement or recovery as 

the management standard will often 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for Berberis nevinii. In general the 

educational benefit of a critical habitat 

designation always exists, although in 

some cases it may be redundant with 

other educational effects. For example, 

HCPs have significant public input and 

may largely duplicate the educational 

benefit of a critical habitat designation. 

This benefit is closely related to a 

second, more indirect benefit: that 

designation of critical habitat would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are 

proposing in this rule because these 

areas are included in this proposed rule 

as having habitat containing the features 

essential to the conservation of the 

species. Consequently, we believe that 

the informational benefits are already 

provided. Additionally, the purpose 

normally served by the designation, that 

of informing State agencies and local 

governments about areas that would 

benefit from protection and 

enhancement of habitat for Berberis 

nevinii, is already well established 

among State and local governments and 

Federal agencies in those areas that we 

proposing to exclude from critical 

habitat in this rule on the basis of other 

existing habitat management 

protections. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

From Critical Habitat 

The benefits of excluding lands with 

HCPs or other approved management 

plans from critical habitat designation 

include relieving landowners, 

communities, and counties of any 

additional regulatory burden that might 

be imposed by a critical habitat 

designation. Most HCPs and other 

conservation plans take many years to 

develop, and upon completion are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. Many conservation plans 

also provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine these conservation efforts 

and partnerships designed to 

proactively protect species to ensure 

that listing under the Act will not be 

necessary. Designation of critical habitat 

within the boundaries of management 

plans that provide conservation 

measures for a species could be viewed 

as a disincentive to those entities 


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currently developing these plans or 

contemplating them in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species are 

affected. Addition of a new regulatory 

requirement would remove a significant 

incentive for undertaking the time and 

expense of management planning. In 

fact, designating critical habitat in areas 

covered by a pending HCP or 

conservation plan could result in the 

loss of some conservation benefits to the 

species if participants abandon the 

planning process, in part because of the 

strength of the perceived additional 

regulatory compliance that such 

designation would entail. The time and 

cost of regulatory compliance for a 

critical habitat designation do not have 

to be quantified for them to be perceived 

as additional Federal regulatory burden 

sufficient to discourage continued 

participation in plans targeting listed 

species’ conservation. 

A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability to seek new 

partnerships with future plan 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within approved management plan 

areas are designated as critical habitat, 

it would likely have a negative effect on 

our ability to establish new partnerships 

to develop these plans, particularly 

plans that address landscape-level 

conservation of species and habitats. By 

preemptively excluding these lands, we 

preserve our current partnerships and 

encourage additional conservation 

actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon, even without the critical habitat 

designation. Such a consultation would 

review the effects of all activities 

covered by the HCP that might 

adversely impact the species under a 

jeopardy standard, including possibly 

significant habitat modification (see 

definition of ‘‘harm’’ at 50 CFR 17.3). In 

addition, Federal actions not covered by 

the HCP in areas occupied by listed 

species would still require consultation 

under section 7(a)(2) of the Act and 

would be reviewed for possibly 

significant habitat modification in 

accordance with the definition of harm 

referenced above. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. We 

believe that the Western Riverside 

County MSHCP fulfills these criteria, 

and we are considering the exclusion of 

non-federal lands covered by this plan 

that provide for the conservation of 

Berberis nevinii. 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional habitat conservation plan 

(HCP) that addresses 146 listed and 

unlisted ‘‘Covered Species,’’ including 

Berberis nevinii, within the 1.26-million 

ac (510,000 ha) Plan Area in western 

Riverside County. Participants in the 

MSHCP include 14 cities in western 

Riverside County; the County of 

Riverside, including the Riverside 

County Flood Control and Water 

Conservation Agency, Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; California Department of 

Parks and Recreation; and the California 

Department of Transportation (Caltrans). 

The MSHCP was designed to establish 

a multi-species conservation program 

that minimizes and mitigates the 

expected loss of habitat and the 

incidental take of Covered Species. On 

June 22, 2004, the Service issued a 

single incidental take permit under 

section 10(a)(1)(B) of the Act to 22 

Permittees under the MSHCP for a 

period of 75 years. The Service granted 

the participating jurisdictions ‘‘take 

authorization’’ of listed species in 

exchange for their contribution to the 

assembly and management of the 

MSHCP Conservation Area. 

The MSHCP will establish 

approximately 153,000 ac (61,916 ha) of 

new conservation lands (Additional 

Reserve Lands) to complement the 

approximate 347,000 ac (140,426 ha) of 

existing natural and open space areas 

(e.g., State Parks, USFS, and County 

Park lands known as Public/QuasiPublic (PQP) Lands) in forming the 

MSHCP Conservation Area. The 

location and configuration of the 

153,000 ac (61,916 ha) Additional 

Reserve Lands is not mapped or 

precisely identified in the MSHCP, but 

rather is based on textual descriptions 

and will be chosen from within a 

310,000-ac (125,453 ha) Criteria Area 

that will be interpreted as 

implementation of the MSHCP 

proceeds. The defined Criteria Area is 

divided into cells of approximately 160 

ac each, and each cell or group of cells 

has specific conservation criteria 

associated with it (MSHCP Section 

3.2.3). For Berberis nevinii, critical 

habitat subunits 1A through 1F within 

the Agua Tibia/Vail Lake unit are 

located entirely within the MSHCP Plan 

Area and are comprised of USFS, BLM, 

and private lands. 

The private lands within proposed 

critical habitat for Berberis nevinii are 

within the Criteria Area and are targeted 

for inclusion within the MSHCP 

Conservation Area as potential 

Additional Reserve Lands. Specific 

conservation objectives in the MSHCP 

for Berberis nevinii provide for 

conservation and management of at least 

8,000 ac (3,238 ha) of suitable habitat 

(defined as chaparral and Riversidean 

alluvial fan sage scrub between 984 and 

2,162 ft (300 and 659 m) in elevation) 

in the Vail Lake area and all known 

locations for B. nevinii in the Vail Lake 

area. The Soboba Badlands occurrence 

is also located within proposed 

Additional Reserve Lands. Additionally, 

the MSHCP requires surveys for B. 

nevinii as part of the project review 

process for public and private projects 

where suitable habitat is present within 

a defined boundary of the Criteria Area 

(see Criteria Area Species Survey Area 

Map, Figure 6–2 of the MSHCP, Volume 

I). For locations with positive survey 

results, 90 percent of those portions of 

the property that provide long-term 

conservation value for the species will 

be avoided until it is demonstrated that 

the conservation objectives for the 

species are met. 

As discussed in the Background 

section of this rule, we were unable to 

accurately quantify the exact number of 

Berberis nevinii occurrences or plants 

within the MSHCP Plan Area. 

Nevertheless, all of these occurrences 

except those identified below are 

located within either existing PQP lands 

or proposed Additional Reserve Lands. 


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Two records near Temecula are outside 

of existing PQP Lands and the proposed 

Additional Reserve Lands and may be 

impacted; however, these occurrences 

are likely extirpated. Another 

occurrence in the Temecula area needs 

to be verified, but may also be impacted. 

The goal of the MSHCP is to conserve 

all known locations of B. nevinii in the 

Agua Tibia/Vail Lake area and the 

Soboba Badlands. Additionally, new 

occurrences that are found as a result of 

survey efforts and are subsequently 

determined to be important to the 

overall conservation of the species may 

be included in the Additional Reserve 

Lands. Although the specific location of 

individual target areas for this species 

has yet to be identified, we agree that 

conservation of known occurrences of 

this plant in the Agua Tibia/Vail Lake 

area (which includes Oak Mountain) 

through the survey requirements, 

avoidance and minimization measures, 

and management for B. nevinii (and its 

PCEs) provided for in the Western 

Riverside County MSHCP exceeds any 

conservation value provided as a result 

of regulatory protections that may be 

afforded through a critical habitat 

designation. 

We propose to exclude approximately 

385 ac (156 ha) of non-Federal lands 

from the final critical habitat 

designation for Berberis nevinii under 

section 4(b)(2) of the Act. These nonFederal lands fall within the MSHCP 

Plan Area and include: approximately 5 

ac (2 ha) of private lands near the 

foothills of the Agua Tibia Mountains 

north of Cleveland National Forest (part 

of Subunit 1B); approximately 87 ac (35 

ha) of private lands on the south flank 

of Big Oak Mountain (Subunit 1C); 

approximately 22 ac (9 ha) of private 

land directly north of Vail Lake 

(Subunit 1D); approximately 251 ac (102 

ha) of private land to the south of Vail 

Lake and on the Vail Lake peninsula, 

which is the area with the largest known 

occurrence of B. nevinii (Subunit 1E); 

and approximately 20 ac (8 ha) of 

private land north of Temecula Creek 

and southeast of Vail Lake (Subunit 1F). 

All of these lands are also within the 

MSHCP’s Conservation Area and the 

MSHCP’s Survey Area and will receive 

conservation benefits under the 

Additional Survey Needs and 

Procedures policy. 

The Federal lands within Subunit 1A 

(BLM-managed) and Subunit 1B (USFS 

managed) are considered PQP lands 

under the MSHCP and as such are 

included within the overall 500,000-ac 

(202,343 ha) MSHCP Conservation Area. 

However, as explained in detail above, 

we are not proposing to exclude BLM or 

USFS lands within subunits 1A and 1B. 

Benefits of Inclusion 

We believe there is minimal benefit 

from designating critical habitat for 

Berberis nevinii on private lands in Unit 

1 (subunits 1B, 1C, 1D, 1E, and 1F) 

because the habitat essential for this 

species in the vicinity of Vail Lake and 

Oak Mountain in western Riverside 

County is targeted for conservation 

under the Western Riverside County 

MSHCP as explained above. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act which directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. The 

protections provided by section 7(a)(2) 

apply to actions on private lands 

whenever there is a Federal nexus, such 

as the use of Federal funds or the need 

for a Federal permit to conduct a 

project. The designation of critical 

habitat may provide a different level of 

protection under section 7(a)(2) for 

Berberis nevinii separate from the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of 

the endangered species. Under the 

Gifford Pinchot decision, critical habitat 

designations may provide greater 

benefits to the recovery of a species than 

was previously believed, but it is not 

possible to quantify this benefit at 

present. However, the protection 

provided is still a limitation on the 

adverse effects that occur as opposed to 

a requirement to provide a conservation 

benefit. 

The inclusion of these 385 ac (156 ha) 

of private land in the proposed critical 

habitat designation for Berberis nevinii 

is unlikely to provide any additional 

Federal regulatory benefits for the 

species consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. 

Inclusion of this area in critical habitat 

would require Federal agencies to 

ensure that their actions on these lands 

are not likely to result in the destruction 

or adverse modification of critical 

habitat. The potential benefits resulting 

from this additional analysis to 

determine destruction or adverse 

modification of critical habitat are likely 

to be minimal to nonexistent because 

known locations of this plant in the 

vicinity of Vail Lake and Oak Mountain 

will be conserved through the survey 

requirements, avoidance and 

minimization measures, and 

management of B. nevinii (and its PCEs) 

provided for in the Western Riverside 

County MSHCP. Additionally, new 

occurrences documented through 

survey efforts that are subsequently 

determined to be important to the 

overall conservation of the species may 

be included in the Additional Reserve 

Lands. We anticipate that these 

conservation measures will exceed any 

conservation value provided as a result 

of regulatory protections that may be 

afforded through a critical habitat 

designation. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public 

to encourage conservation efforts to 

benefit Berberis nevinii and its habitat. 

However, as discussed above, the 

importance of protecting the biological 

resource values of these lands, 

including B. nevinii, has already been 

clearly and effectively communicated to 

Federal, State, and local agencies and 

other interested organizations and 

members of the public through this 

proposed rule and the Western 

Riverside County MSHCP approval and 

implementation process. 

In short, we expect the Western 

Riverside County MSHCP to provide 

enhanced protection and management 

of Berberis nevinii and its PCEs within 

areas considered essential for 

conservation of the species on private 

lands in the vicinity of Vail Lake and 

Oak Mountain. We expect the MSHCP 

to provide a greater level of 

conservation for B. nevinii on private 

lands in this area than would 

designation of critical habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the Western Riverside County 

MSHCP commits the permittees to 

manage private lands in western 

Riverside County, California, for the 

benefit of Berberis nevinii and other 

covered species. These commitments go 

well beyond a simple requirement for 

Federal agencies to avoid adverse 

modification of critical habitat by 

including conservation and 

management of at least 8,000 ac (3,238 

ha) of suitable B. nevinii habitat in the 

vicinity of Vail Lake and Oak Mountain, 

and all known locations of the species 

in this area. Excluding the 385 ac (156 

ha) of private land in subunits 1B 

through 1F from critical habitat 

designation would recognize the 

permittees’ commitment under the 

MSHCP to manage non-Federal lands in 

western Riverside County consistent 

with the conservation goals and 

objectives of the MSHCP. It would also 

provide additional incentive to the 

permittees to maintain and strengthen 

the partnerships created by their official 


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participation in the MSHCP planning 

process, especially considering the high 

level of cooperation by the participants 

in the MSHCP to conserve this taxon. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion of approximately 

385 ac (156 ha) of non-Federal lands 

within the MSHCP Plan Area from the 

final designation of critical habitat, and 

we have determined that the benefits of 

excluding the non-Federal lands in Unit 

1 outweigh the benefits of including 

these lands. The PCEs required by 

Berberis nevinii will benefit from the 

conservation measures outlined in the 

MSHCP. In summary, these 

conservation measures include 

protecting and managing important 

habitat containing PCEs within the 

MSHCP Conservation Area, primarily 

through the protection of habitat from 

surface-disturbing activities; 

implementing specific management and 

monitoring practices to help ensure 

conservation of B. nevinii in the Plan 

Area; maintaining physiological and 

ecological characteristics of occupied 

habitat and suitable areas not known to 

be occupied (e.g., managing flood 

control activities, nonnative species, 

and other activities so as to limit 

alterations to the natural hydrologic and 

fire regime); and conducting surveys 

and implementing other required 

procedures to ensure avoidance of 

impacts to at least 90 percent of suitable 

habitat areas determined important to 

the long-term conservation of B. nevinii 

within the Criteria Area. The specific 

areas identified as subunits 1C, 1D, 1E, 

and 1F, as well as the non-Federal lands 

identified within Subunit 1B, will be 

addressed under the MSHCP. These 

specific conservation actions, survey 

requirements, avoidance and 

minimization measures, and 

management of B. nevinii and its 

habitat/PCEs as outlined in the MSHCP 

exceed any conservation value provided 

as a result of regulatory protections that 

may be afforded through a critical 

habitat designation. 

The exclusion of these lands from 

critical habitat would also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents in the development of the 

MSHCP. The benefits of excluding these 

lands from critical habitat would 

outweigh the minimal benefits of 

including these lands as critical habitat, 

including the educational benefits 

gained by informing the public of areas 

important for the long-term 

conservation of this species. Such 

educational benefits can still be 

accomplished from materials provided 

on our Web site. Furthermore, many of 

the educational benefits of critical 

habitat designation would be achieved 

through the overall designation, notice, 

and public comment process, and 

would occur whether or not these 

particular subunits are designated. 

Exclusion Would Not Result in 

Extinction of the Species 

We do not believe that the exclusion 

of 385 ac (156 ha) from the final 

designation of critical habitat for 

Berberis nevinii would result in the 

extinction of the species because the 

Western Riverside County MSHCP 

provides for the conservation of this 

species and its PCEs on occupied areas 

in the Agua Tibia/Vail Lake area 

(including Oak Mountain), as well as 

areas discovered to be occupied by B. 

nevinii during surveys of suitable 

habitat within a defined boundary of the 

Criteria Area. Importantly, as we stated 

in our biological opinion for the MSHCP 

(Service 2004), while some loss of 

modeled habitat for B. nevinii is 

anticipated due to implementation of 

the MSHCP, implementation of the plan 

will not jeopardize the continued 

existence of this species. 

The jeopardy standard of section 7 

and routine implementation of 

conservation measures through the 

section 7 process will also provide 

assurances that the species will not go 

extinct. The proposed exclusion of 

critical habitat leaves these protections 

unchanged from those that would exist 

if the proposed excluded areas were 

designated as critical habitat. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for Berberis 

nevinii is being prepared. We will 

announce the availability of the draft 

economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at http:// 

www.fws.gov/carlsbad, or by contacting 

the Carlsbad Fish and Wildlife Office 

directly (see ADDRESSES section). Based 

on public comments, the proposed 

designation itself, and the information 

in the full economic analysis, additional 

areas beyond those identified in this 

assessment may be excluded from final 

critical habitat by the Secretary under 

the provisions of section 4(b)(2) of the 

Act. This is provided for in the Act and 

in our implementing regulations at 50 

CFR 242.19. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

send to these peer reviewers copies of 

this proposed rule immediately 

following publication in the Federal 

Register. We will invite these peer 

reviewers to comment, during the 

public comment period, on the specific 

assumptions and conclusions regarding 

the proposed designation of critical 

habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing at least 15 days 

prior to the close of the public comment 

period. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 (Regulatory 

Planning and Review) requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 5575 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, Executive Order 12630, 

Executive Order 13211, and Executive 

Order 12875. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, then 

the agency will need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement pursuant to the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

subspecies. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis can be obtained from 

our Web site at http://www.fws.gov/ 

carlsbad, or by contacting the Carlsbad 

Fish and Wildlife Office directly (see 

ADDRESSES section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared under section 4(b)(2) 

of the Act and E.O. 12866. This draft 

economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation for an additional 60 days. 

The Service will include with the notice 

of availability, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. Although 

this proposed rule to designate critical 

habitat for Berberis nevinii is a 

significant regulatory action under 

Executive Order 12866, it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 


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Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) A condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

would significantly affect small 

governments. The lands being proposed 

for final critical habitat designation are 

owned by the Federal Bureau of Land 

Management and the U.S. Forest 

Service. Neither of these government 

entities fit the definition of ‘‘small 

governmental jurisdiction.’’ As such, a 

Small Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Berberis nevinii in a 

takings implications assessment. The 

takings implications assessment 

concludes that this proposed 

designation of critical habitat for the B. 

nevinii would not pose significant 

takings implications. However, we will 

further evaluate this issue as we 

conduct our economic analysis and 

review and revise this assessment as 

warranted. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), the rule would not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with DOI and Department of 

Commerce policy, we requested 

information from, and coordinated 

development of, this proposed critical 

habitat designation with appropriate 

State resource agencies in California. 

The designation of critical habitat in 

areas currently occupied by Berberis 

nevinii would impose no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

would likely have some benefit to these 

governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated areas to assist the public in 

understanding the habitat needs of 

Berberis nevinii. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 

(1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation of Berberis nevinii, and no 

Tribal lands that are unoccupied areas 

that are essential for the conservation of 

B. nevinii. Therefore, the designation of 

critical habitat for B. nevinii has not 

been proposed on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Authors 

The primary authors of this package 

are the Nevada Fish and Wildlife Office, 

Reno, Nevada, and the Carlsbad Fish 

and Wildlife Office, Carlsbad, 

California. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 


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Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 5577 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.12(h), revise the entry for 

‘‘Berberis nevinii’’ under ‘‘FLOWERING 

PLANTS’’ to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed 

Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Berberis nevinii ................................... Nevin’s barberry U.S.A. (CA) .. Berberidaceae ..... E ............ 648 ......... 17.96(a) NA. 

* * * * * * * 

3. Amend § 17.96(a) as follows: 

a. Add ‘‘Family Berberidaceae’’ in 

alphabetical order of the family names; 

and 

b. Add a critical habitat entry for 

‘‘Berberis nevinii’’ under Family 

Berberidaceae to read as set forth below. 

§ 17.96 Critical habitat—plants. 

(a) Flowering Plants. 

* * * * * 

Family Berberidaceae: Berberis nevinii 

(Nevin’s barberry) 

(1) Critical habitat is depicted for 

Riverside County, California, in the text 

and on the maps below. 

(2) The primary constituent elements 

(PCEs) of critical habitat for Berberis 

nevinii are: 

(i) Low-gradient (i.e., nearly flat) 

canyon floors, washes and adjacent 

terraces, and mountain ridges/summits, 

or eroded, generally northeast- to 

northwest-facing mountain slopes and 

banks of dry washes typically of less 

than 70 percent slope that provide space 

for plant establishment and growth; 

(ii) Well-drained alluvial soils 

primarily of non-marine sedimentary 

origin, such as Temecula or sandy 

arkose soils; soils of the CajalcoTemescal-Las Posas soil association 

formed on gabbro (igneous) or latite 

(volcanic) bedrock; metasedimentary 

substrates associated with springs or 

seeps; and heavy adobe/gabbro-type 

soils derived from metavolcanic geology 

(Mesozoic basic intrusive rock) that 

provide the appropriate nutrients and 

space for growth and reproduction; and 

(iii) Scrub (chaparral, coastal sage, 

alluvial, riparian) and woodland (oak, 

riparian) vegetation communities 

between 900 and 3,000 ft (275 and 915 

m) in elevation that provide the 

appropriate cover for growth and 

reproduction. 

(3) Critical habitat does not include 

man made structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) existing on the effective 

date of this rule and not containing one 

or more of the primary constituent 

elements. 

(4) Data layers defining map units 

were created on a base of USGS 1:24,000 

maps, and critical habitat units were 

then mapped using Universal 

Transverse Mercator (UTM) North 

American Datum (NAD) 1927 

coordinates. We used aerial photographs 

as well as soils and vegetation data to 

help refine unit boundaries based on 

presence of PCEs. 

(5) Unit 1. Agua Tibia/Vail Lake, 

Riverside County, California. 

(i) Subunit 1A for Berberis nevinii, Big Oak 

Mountain Summit Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangle Sage, lands bounded by the 

following UTM NAD27 coordinates (E, N): 

502200, 3708400; 502400, 3708400; 502400, 

3708100; 502200, 3708100; thence returning 

to 502200, 3708400. 

(ii) Subunit 1B for Berberis nevinii, Agua 

Tibia Mountain Foothills Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangle Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, N): 

504222, 3703100; 504400, 3703100; 504400, 

3703000; 504500, 3703000; 504500, 3702700; 

504300, 3702700; 504300, 3702900; 504200, 

3702900; 504200, 3703086; thence returning 

to 504222, 3703100. 

(iii) Subunit 1C for Berberis nevinii, South 

Flank Big Oak Mountain Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangles Sage and Vail Lake, lands 

bounded by the following UTM NAD27 

coordinates (E, N): 501900, 3707400; 502100, 

3707400; 502100, 3707200; 502400, 3707200; 

502400, 3707100; 502700, 3707100; 502700, 

3706900; 502100, 3706900; 502100, 3706400; 

501900, 3706400; thence returning to 501900, 

3707400. 

(iv) Subunit 1D for Berberis nevinii, North 

Vail Lake Subunit, Riverside County, 

California. From USGS 1:24,000 quadrangles 

Sage and Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, N): 

502600, 3706600; 502900, 3706600; 502900, 

3706300; 502600, 3706300; thence returning 

to 502600, 3706600. 

(v) Subunit 1E for Berberis nevinii, South 

of Vail Lake/Peninsula Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangle Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, N): 

502473, 3705611; 502487, 3705628; 502494, 

3705628; 502641, 3705560; 502648, 3705557; 

502653, 3705552; 502659, 3705538; 502665, 

3705518; 502667, 3705506; 502676, 3705495; 

502684, 3705486; 502693, 3705468; 502695, 

3705461; 502693, 3705456; 502700, 3705444; 

502707, 3705436; 502712, 3705428; 502712, 

3705419; 502708, 3705408; 502705, 3705396; 

502698, 3705384; 502689, 3705376; 502676, 

3705356; 502669, 3705334; 502671, 3705311; 

502677, 3705301; 502672, 3705285; 502669, 

3705266; 502659, 3705234; 502649, 3705196; 

502652, 3705152; 502658, 3705122; 502661, 

3705080; 502665, 3705034; 502674, 3705014; 

502685, 3704979; 502705, 3704936; 502708, 

3704929; 502724, 3704909; 502725, 3704908; 

502736, 3704876; 502793, 3704820; 502828, 

3704794; 502859, 3704788; 502865, 3704791; 

502879, 3704784; 502907, 3704779; 502941, 

3704777; 503019, 3704751; 503051, 3704744; 

503079, 3704742; 503108, 3704745; 503134, 

3704748; 503151, 3704748; 503164, 3704748; 

503174, 3704748; 503187, 3704746; 503198, 

3704737; 503207, 3704732; 503215, 3704728; 

503281, 3704698; 503289, 3704697; 503300, 

3704696; 503300, 3704300; 503600, 3704300; 

503600, 3704100; 503500, 3704100; 503500, 

3703900; 503200, 3703900; 503200, 3704100; 

503100, 3704100; 503100, 3704600; 502700, 

3704600; 502700, 3704700; 502300, 3704700; 

502300, 3704500; 502200, 3704500; 502200, 

3704200; 502000, 3704200; 502000, 3704000; 

501600, 3704000; 501600, 3704300; 501700, 

3704300; 501700, 3705100; 501900, 3705100; 

501900, 3704900; 502000, 3704900; 502000, 

3704600; 502009, 3704588; 502038, 3704568; 

502064, 3704558; 502111, 3704555; 502159, 

3704562; 502191, 3704583; 502222, 3704611; 

502247, 3704656; 502274, 3704719; 502287, 

3704762; 502287, 3704806; 502271, 3704875; 

502242, 3704940; 502237, 3704948; 502237, 

3704961; 502272, 3704992; 502296, 3705015; 

502330, 3705040; 502358, 3705052; 502382, 

3705079; 502404, 3705116; 502423, 3705150; 

502434, 3705160; 502436, 3705171; 502487, 

3705293; 502496, 3705308; 502500, 3705322; 

502497, 3705332; 502501, 3705348; 502497, 

3705372; 502487, 3705414; 502481, 3705428; 

502475, 3705447; 502456, 3705535; thence 

returning to 502473, 3705611. 

(vi) Subunit 1F for Berberis nevinii, 

Temecula Creek East Subunit, Riverside 

County, California. From USGS 1:24,000 

quadrangle Vail Lake, lands bounded by the 

following UTM NAD27 coordinates (E, N): 

504400, 3704200; 504600, 3704200; 504600, 

3703800; 504400, 3703800; thence returning 

to 504400, 3704200. 

(vii) Map of Subunits 1A through 1F (Map 

1) follows. 


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5578 Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 

Map 1: Unit 1—Vail Lake (Subunit 1A 

Big Oak Mountain, Subunit 1B Agua 

Tibia Mountain Foothills, Subunit 1C 

South Flank Big Oak Mountain, Subunit 

1D North of Vail Lake, Subunit 1E South 

of Vail Lake/Peninsula, Subunit 1F 

Temecula Creek East), Riverside County, 

California. 

BILLING CODE 4310–55–P 


rwilkins on PROD1PC63 with PROPOSAL
Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 5579 


rwilkins on PROD1PC63 with PROPOSALEP06FE07.000</GPH>
5580 Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / Proposed Rules 

* * * * * Dated: January 30, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–472 Filed 2–5–07; 8:45 am] 

BILLING CODE 4310–55–C 


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